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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II BID INVITATION CHAPTER III BID TENDERING CHAPTER IV OPENING, EVALUATING AND WINNING BIDS CHAPTER V SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. For the purposes of regulating the competitive bidding activities for the construction of highway projects, ensuring the quality of the construction of highway projects and protecting the legitimate rights and interests of all parties concerned, these Measures are formulated in accordance with the Highway Law and the Bidding Law. Article 2. The competitive bidding activities for the construction of highway projects within the territory of the People's Republic of China shall be governed by these Measures. The term "highway project" as mentioned in these Measures includes the new construction, rebuilding and installation projects of highways, highway bridges, highway tunnels and the related accessory facilities, including safety, protection, monitoring, communication, toll, service facilities, management facilities, etc. Article 3. The following highway construction projects shall be subject to competitive bidding, but excluding those concerned with national security, state secrets, emergency handling, disaster relief or poverty relief, and for which the method of competitive bidding is improper: (1) A highway construction project with a total investment of 30 million yuan or more; (2) A highway construction project with an estimated price of a single construction contract in the sum of 2 million yuan or more; (3) Other highway construction projects that shall be subject to competitive bidding as required by any law or administrative regulation. Article 4. The principle of openness, fairness, impartiality and good faith shall be observed in the competitive bidding activities of highway construction projects. Article 5. For a highway construction project that shall be subject to competitive bidding pursuant to the law, the pertinent competitive bidding activities shall not be subject to any geographical or departmental restrictions, and any enterprise legal person which satisfies the prescribed highway construction conditions may participate in the bidding. No organization or individual may illegally interfere with the competitive bidding activities for the construction of highway projects. Article 6. The Ministry of Transport shall be responsible for the supervision and administration over the competitive bidding activities throughout the country. The competent departments of Transport of the local people's governments at the county level or above shall, according to their respective functions, be responsible for the supervision over and administration of the competitive bidding activities for the construction of highway projects within their respective administrative division. CHAPTER II BID INVITATION Article 7. A highway construction project subject to competitive bidding shall satisfy the following conditions: (1) The preliminary design documents have been approved; (2) The construction fund has been in its place; and (3) The project legal person has been determined and meets the qualification requirements for the project legal person. Article 8. The tender of a highway construction project shall be the project legal person who offers the highway construction project subject to competitive bidding, and conducts the competitive bidding for it in accordance with these Measures. Article 9. The tender of a highway construction project may handle the bidding affairs by itself if it satisfies the following conditions: (1) Having the project management, cost budget management and financial management abilities which can match the biding project; (2) Having the ability to organize the preparation of bid invitation documents on highway construction projects; and (3) Having the ability to check the qualifications of the tenders and to organize the evaluation of the bids. Any tender who does not meet the conditions as described in the preceding paragraph shall entrust a qualified bidding agency to handle the bidding affairs relating to the construction of a highway project. No organization or individual may designate any bidding agency for any tender. Article 10. The competitive bidding for the construction of highway projects is classified into public bidding and invited bidding. In the case of public bidding, the tender shall issue a bid invitation announcement on the newspapers, periodicals, information networks or other media as designated by the state to invite the unspecified qualified legal persons to bid for the project. In the case of invited bidding, the tender shall, by way of issuing bid invitations, invite 3 or more specified qualified legal persons to bid for the project. Article 11. The bidding for the construction of a highway project shall be public bidding unless it is otherwise provided for by any law, administrative regulation or by these Measures. With regard to any project which meets any of the following conditions and for which it is improper to conduct a public bidding, after the examination and approval formalities are completed, the method of invited bidding may be adopted for it: (1) The technologies of the project are complex or the project has any special technical requirements, and the number of potential qualified bidders is limited; (2) The project is subject to natural, geographical and environmental restrictions; or (3) The cost for public bidding is too big as compared to the project cost. Article 12. With regard to the competitive bidding for the construction of a highway project, a bid may be conducted for each section of the entire construction project, or separate bids may be conducted on the basis of different professions or different construction phases, but the competitive bidding shall not be evaded by dismembering a project subject to bidding into parts or by any other means. Article 13. The bidding for the construction of a highway project shall be properly divided into tender sections according to the principle of being helpful to carrying out the project management and mass construction. The construction phases shall be reasonably determined according to the preliminarily designed construction phases upon approval, taking the actual circumstances into consideration. Article 14. The competitive bidding for the construction of a highway project shall proceed by taking the following steps: (1) To determine the method of competitive bidding. In the case of invited bidding, it shall be subject to the examination and approval of the competent organ under the relevant provisions of the state; (2) To prepare the documents for the preliminary qualification examination of bidders, and bid invitation documents. The bid invitation documents shall be subject to archival filing under these Measures; (3) To issue a bid invitation announcement and sell the documents on the preliminary examination of biding qualifications. In the case of invited bidding, the bid invitations may be directly issued and the bid invitation documents may be directly sold; (4) To examine the qualifications of the potential bidders; (5) To issue bid invitations and sell bid invitation documents to the potential bidders who pass the preliminary qualification examination; (6) To organize the potential bidders to visit the site of the bidding project and to hold a pre-bid meeting; (7) To accept the bid documents of the bidders and open the bid; (8) To establish a bid evaluation commission to evaluate the bids and to recommend candidates for the bid winner; (9) To decide the bid winner. The bid evaluation report and result shall be subject to the archival filing formalities and be publicized in accordance with these Measures; (10) To issue a bid winning notice; and (11) To sign a highway project construction contract with the bid winner. Article 15. The potential bidders of the competitive bidding for the construction of a highway project shall be subject to qualification examination. If the method of public bidding is adopted for the construction of a highway project, after the bid announcement is issued, the tender shall examine the qualifications of the potential bidders according to the applications submitted by the potential bidders for the preliminary examination of their qualifications. The tender shall only sell bid invitation documents to those potential bidders who pass the preliminary qualification examination. If the method of invited bidding is adopted for the construction of a highway project, after the bid invitations are issued, the tender shall examine the qualifications of the bidders according to the bid documents they have submitted. The measures for the preliminary qualification examination for the competitive bidding for the construction of highway projects shall be separately formulated by the Ministry of Transport. Article 16. The tender shall examine the qualifications of the potential bidders in strict compliance with the provisions on the preliminary qualification examination. It shall do so by drawing lots, random selection of numbers or by any other lottery method. Article 17. The tender shall prepare bid invitation documents according to the characteristics and needs of the bidding project. The bid invitation documents for the construction of the principal part of a grade II highway or above, or a large bridge, or a tunnel project shall be prepared according to the formats and requirements as given in the Specimen of the Domestic Bid Invitation Documents for Highway Projects issued by the Ministry of Transport. The bid invitation documents for the construction of any highway project and its accessory facilities other than those as prescribed in the preceding paragraph may be prepared by reference to the Specimen of the Domestic Bid Invitation Documents for Highway Projects and may be properly simplified according to the actual needs. Article 18. The bidders' qualification requirements as described in the bid invitation documents shall be in line with the laws and administrative regulations. No tender may hamper or exclude any bidder by setting restrictive conditions in the bid invitation documents, or regard the obtainment of an award of the local area as the condition for earning extra marks in the evaluation of bids or for winning the bid. Article 19. The bid invitation documents shall contain the following main contents: (1) A bid invitation; (2) The points of attention for bidders; (3) The contractual terms on the construction of the highway project; (4) The technical norms which apply to the bidding project; (5) The construction drawing design documents; and (6) The formats of the bid documents, including the formats of the tender letters, appendixes, attached tables, checklists of workloads, bid guarantee documents, contracts, etc. The notes to bidders shall contain the following main contents: (1) The bid evaluation criterions and methods; (2) The requirements for the construction period; (3) The starting date and deadline, place and form for the submission of bid documents; and (4) The time and place for opening the bid. A bid invitation announcement or bid invitation shall specify the following contents: (1) The name and address of the tender; (2) The name, technical criterions, scale, investment, construction period, implementation place and time of the bidding project; (3) The method, time and place for the obtainment of the preliminary qualification examination documents or bid invitation documents; (4) The qualification requirements for the potential bidders; and (5) Other matters that the tender deems necessary to announce or notify. Article 20. A tender shall, according to the time and place as specified in the bid announcement or bid invitation, sell the preliminary qualification examination documents and bid invitation documents. The time for the sale of preliminary qualification examination documents and bid invitation documents shall not be less than 5 working days. Article 21. A tender shall reasonably determine the time for the preparation of the preliminary qualification examination application documents and bid invitation documents. The time for the preparation of the preliminary qualification examination application documents shall start from the date of sale of the preliminary qualification examination application documents to the deadline for the potential bidders to submit preliminary qualification examination application documents, which shall not be less than 14 days. The time for the preparation of bid documents shall start from the date of sale of bid documents to the deadline for the bidders to submit bid invitation documents, which shall not be less than 28 days for a project of expressway, grade I highway, extremely large bridge with complicated technologies or extremely long tunnel, and which shall not be less than 20 days for any other highway project. Article 22. The bid invitation documents for the construction of a national backbone highway or a national expressway network construction project shall be submitted to the Ministry of Transport for archival purposes. The bid invitation documents for the construction of any other highway project shall, according to the power for the administration of project, be submitted to the competent department of transport of the local people's government at the county level or above for archival purposes. If the competent department of transport finds that the bid invitation documents are contrary to any law, regulation or rule, it shall, within 7 days after it receives the archival documents, it shall put forward its opinions and shall timely exercise its supervisory and inspection functions. Article 23. If it is necessary for the tender to clarify or modify the bid invitation documents which have already been sold, it shall give a written notice to each recipient of the bid invitation documents and shall go through the archival filing formalities in accordance with Article 22. The post-clarification or post-modification contents of the bid invitation documents shall be an integral part of the bid invitation documents. Article 24. If the tender intends to set a base price for a tender, it may do so by itself or entrust a qualified entity to do so. The base price of a tender shall meet the provisions of the state on the cost budget management of projects and shall be controlled within the approved budget. The tender shall take measures to keep the base price of a tender confidential prior to opening the bids. Article 25. The result of the preliminary qualification examination of a national backbone highway or national expressway network construction project shall be submitted to the Ministry of Transport for archival filing. The result of the preliminary qualification examination of any other highway construction project shall, according to the power for the administration of project, be submitted to the competent department of the local people's government at the county level or above. CHAPTER III BID TENDERING Article 26. A bidder for the construction of a highway project shall be a highway project construction entity who responds to the bid invitation and participate in the competitive bidding. A bidder shall meet the qualification conditions as stated in the bid invitation documents and shall have the ability to undertake the project which it bids for. Article 27. Two or more construction entities may form a combo to participate in the competitive bidding for the construction of a highway project. All members of the combo shall meet the qualification conditions as stated in the bid invitation documents. The qualification grade of the combo formed by the same professional construction entities shall be determined according to the entity with inferior qualification grade. For the entities which participate in the competitive bidding for the construction of a highway project, an indication shall be given in the preliminary qualification examination application documents and a combo agreement signed by all members of the combo shall be submitted. The combo agreement shall clearly state the rights and obligations of the principal bidder and other members, respectively. Article 28. A bidder shall, according to the requirements as stated in the bid invitation documents, timely participate in the pre-bid meeting convened and presided over by the tender and visit the site of the bidding project. Article 29. A bidder shall prepare bid documents according to the requirements as stated in the bid invitation documents and shall make responses to the substantial requirements and conditions as specified therein. Article 30. Where a bidder, according to the actual circumstances as stated in the bid invitation documents, plans to subcontract partial non-crucial work of the bidding project after it wins the bid, it shall submit a subcontract plan to the tender and give a clear indication in the bid documents. The qualifications of the subcontractor shall match with the scale and standards of the project it undertakes. Article 31. The tender letter, appendixes and tender offer in the bid documents shall be signed by the legal representative of the bidder or his authorized agent, and shall bear the seal of the bidder. The other parts of the bid documents shall be signed according to the requirements as stated in bid invitation documents. The bid invitation documents shall be sealed by the bidder and shall be served on the tender according to the time, place and manner as specified in the bid invitation documents. Article 32. During the period after the bid documents have been served on the tender but before the bid deadline as specified in the bid invitation documents falls, if a bidder needs to withdraw or modify the bid documents, it shall make an explanation in the form of a formal letter. The letter on modifying the bid documents shall be an integral part of the bid documents. The requirements for its format, seal and service time shall be governed by the provisions on the bid documents. Article 33. A tender shall sign the receipt of the bid documents which are timely submitted to it by the bidders and shall properly preserve them. No tender may accept any bid documents which have not been sealed under the relevant requirements, or any bid documents which are served on it after the deadline has passed. Article 34. No bidder seek to win any bid by adopting any deceitful method, or by colluding with any other bidders, or by giving a bribe, or by any other improper means. No bidder may hamper other bidders from bidding. CHAPTER IV OPENING, EVALUATING AND WINNING BIDS Article 35. The time for opening bids shall be the same as the deadline as determined in the bid invitation documents for the submission of bid documents. The place of opening bids shall be the place as determined in advance in the bid invitation documents, and shall not be changed randomly. Article 36. The bids shall be opened publicly. The tender shall preside over the opening of bids and shall invite the competent department of transport and the legal representatives of all bidders or their authorized agents to participate. Article 37. When opening bids, the bidders or the representative they elect shall inspect the sealing status of the bid documents, or the notarization institution entrusted by the tender shall inspect and notarize it. After the sealing status of the bid documents has been confirmed inerrant, the tender may unseal the bids publicly and read the name of the bidders, the tender offers and other main contents of the bid documents. If the tender has set a base price for the bid, it shall announce the base price simultaneously. Article 38. The tender shall record the bid opening process and shall put the record on files for reference. Article 39. The bid evaluation commission established by the tender according to law shall be responsible for the evaluation of the bids. The bid evaluation commission shall be composed of the representative of the tender, and technical and economic experts. There shall be 5 or more members (in odd number) in the bid evaluation commission, of whom the number of experts shall not be less than 2/3 of the total number. Article 40. For a national backbone highway or national expressway network construction project, the experts to form the bid evaluation commission shall be randomly selected from the bid evaluation database established by the Ministry of Transport. For any other highway construction project, the experts of the bid evaluation commission shall be randomly selected from the bid evaluation expert database established by the competent department of transport of the provincial people's government. No interested person of the bidder may become a member of the bid evaluation commission for the bidding project. Article 41. The name list of the members of the bid evaluation commission shall be kept confidential prior to the determination of the bid winner. Article 42. The members of the bid evaluation commission of perform their duties objectively and impartially, shall abide by the professional ethics and shall bear the liabilities for the evaluation opinions. No member of the bid evaluation commission may secretly contact any bidder, or accept any bribe or other benefits from any bidder, or divulge any information about the evaluation of the bid documents, recommendation of the bid winner candidates, or other information relevant to the evaluation of the bids. Where any of the members of the bid evaluation commission violates the regulation, if it is found to be true, such member shall be disqualified from being a member of the bid evaluation commission and shall no longer participate in the evaluation of bids for any project which shall be subject to competitive bidding in accordance with the law. No entity or individual may illegally interfere with or affect the bid evaluation process and result. Article 43. The bid evaluation committee may, where necessary, require a bidder to clarify or make an explanation about the ambiguous contents in the bid documents, but the clarification or explanation shall not exceed or change the substantial contents of the bid documents. Article 44. The reasonable low price method, the lowest bid evaluation price method, the comprehensive evaluation method, the dual envelope bid evaluation method or any other bid evaluation method permitted by law or regulation may be adopted in the evaluation of the bids for the construction of a highway project. The reasonable price method refers to the bid evaluation method whereby the bidders, who passed the preliminary evaluation and the detailed evaluation, are graded on the basis of the bid evaluation price in a method as specified in the bid invitation documents rather than on the basis of their respective construction design ability, financial ability, technical ability, performances and credit standing, these bidders are arranged in a sequence from high grades to low grades and the top 3 bidders are recommended as bid winner candidates. The lowest bid evaluation method refers to the bid evaluation method whereby the bid documents, in which the bid evaluation price is not lower than the cost price, are arranged in a sequence from the low bid evaluation price to high bid evaluation price, then these bid documents go through the preliminary evaluation and the detailed evaluation, and finally the top 3 bidders who pass the preliminary evaluation and the detailed evaluation and offer the lowest bid evaluation price are recommended as bid winner candidates. The comprehensive evaluation method refers to the bid evaluation method whereby the all bidders, who have passed the preliminary evaluation and the detailed evaluation, are, on a comprehensive basis, graded according to their bid evaluation price, financial ability, technical ability, management level, performances and credit standing, then these bidders are arranged in a sequence from high comprehensive grades to low comprehensive grades, and finally the top 3 bidders are recommended as bid winner candidates. The dual envelope bid evaluation method refers to the bid evaluation method whereby the tender offer and workload checklist of a bidder is separately sealed in one envelope, the other commercial and technical documents are sealed in another envelope, and the bids are opened for twice. First, the envelope of commercial and technical documents is opened, a preliminary evaluation and a detailed evaluation of the commercial and technical documents is conducted, and the name list of the bidders who pass the commercial and technical evaluation is formed. Second, the envelope of the tender offer and workload checklist of a bidder is opened, the tender offer is read on the spot, then the tender offer is evaluated according to the bid evaluation method as specified in the bid invitation documents, and bid winner candidates are recommended. For any bidder who fails to pass the commercial and technical evaluation, its envelop of tender offer will not be opened and shall be returned to it on the spot. Generally speaking, the reasonable low price method shall be adopted for the evaluation of the bids for the construction of a highway project. For a project under a loan of the World Bank, Asian Development Bank or any other international financial organization, or for a small project with little technological content, the lowest bid evaluation method shall apply. Article 45. The bid evaluation commission shall, according to the bid evaluation criterions and methods as determined in the bid invitation documents, evaluate and compare the bid documents. Any criterion or method uncovered by the bid invitation documents shall not serve as a basis for bid evaluation. Article 46. After the bid evaluation commission finishes the bid evaluation work, it shall put forward a written bid evaluation report, which shall be signed by all bid evaluation members. The bid evaluation report shall contain: (1) The name list of the members of the bid evaluation commission; (2) The information about the bid opening records; (3) The criterions and methods adopted for bid evaluation; (4) The evaluation of the bidders; (5) The information about the bidders who satisfy the relevant requirements; (6) The bid winner candidates as recommended; and (7) Other matters, about which an explanation shall be made. Article 47. The bid winner candidates recommended by the bid evaluation commission shall be limited to 1 up to 3 bidders and the sequential order shall be indicated. The tender shall, according to the written bid evaluation report put forward by the bid evaluation commission, determine the bid winner candidate who stands first as the bid winner. If the top 1 bid winner candidate waives the bid, or if it fails to perform the contract due to any force majeure, or if it fails to submit a guarantee for fulfilling the contract within the time limit as specified in the bid invitation documents, the tender may determine the bid winner candidate who stands second as the bid winner. If the bid winner candidate who stands second can not sign the contract due to any of the reasons as described in the preceding paragraph, the tender may determine the bid winner candidate who stands third as the bid winner. The tender may authorize the bid evaluation commission to directly determine the bid winner. Article 48. The tender shall publish an announcement of the bid evaluation result on the government website of the provincial competent department of transport of the place where the bidding project is located, so as to accept public supervision. The announcement shall be kept there for no less than 7 days. Article 49. A bid shall be treated as an invalid one under any of the following circumstances: (1) Any of the bid documents fails to be signed by the legal representative or by its authorized agent, or does not bear the official seal of the bidder; (2) The handwriting of the bid documents are too scratchy or ambiguous as to be illegible; (3) The bidder submits 2 or more sets of bid documents for a same bid section and it fails to declare in writing which one is valid; (4) The bidder offers 2 or more prices for a same bid section where no selective offers are required by the bid invitation documents; (5) The construction period promised by the bidder exceeds that as specified in the bid invitation documents, or the bidder has reserved opinions on any important clause of the contract; (6) The bidder fails to pay the bid security; or (7) Other circumstances in which the bid documents do not meet the substantial requirements as specified in the bid invitation documents. Article 50. Under any of the following circumstances, the tender shall re-launch a bid invitation under any of the following circumstances: (1) There are less than 3 bidders; (2) Upon evaluation of the bid evaluation commission, none of the bids meets the requirements as specified in the bid invitation documents; (3) The successful bid is invalidated due to the illegal act of the tender, the agent of the tender, or the bidder; or (4) All bid winners fail to sign a highway project construction contract. Where a bid invitation is re-launched, the bid invitation documents, preliminary qualification examination results and bid evaluation reports shall be submitted to the competent department of transport for archival purposes in accordance with these Measures. If the bid invitation documents have not been modified, they are not required to go through the archival filing formalities. Article 51. After the tender determines the bid winner, it shall issue a notice to the bid winner and shall simultaneously notify all unsuccessful bidders of the bid result. Article 52. The tender shall, within 15 days after the determination of the bid winner, submit a bid evaluation report to the archival filing organ for archival purposes in accordance with Article 22. Article 53. The tender and the bid winner shall enter into a written contract on the construction of highway project. The contract on the construction of highway project shall be concluded according to the bid invitation documents, bid documents of the bid winner and notice about the bid winner. The tender and the bid winner shall not conclude any other agreement which is not in match with the substantial contents of the contract. Article 54. A tender shall, within 5 working days after a contract on the construction of a highway project is concluded, refund the bidding security to the bid winner and the bid losers. If the bid winner waives the successful bid for its own reason and if it is stipulated in the bid invitation documents that the bidding security will not be repaid in the case of waiver of the successful bid, the bid winner has no right to request for refund of the bidding security. CHAPTER V SUPPLEMENTARY PROVISIONS Article 55. Anyone who violates these Measures and the Bidding Law shall bear the corresponding legal liabilities. Article 56. The competitive bidding for the construction of a highway project under a loan granted by an international financial organization or by a foreign government, if the said international financial organization or foreign government has any special provisions on the concrete conditions and procedures for the competitive bidding for the construction, such provisions may apply, but they shall not conflict with the social and public interests of the People's Republic of China. If it is otherwise provided for by the Ministry of Transport, the provisions of the Ministry of Transport shall prevail. Article 57. These Measures shall come into force as of August 1, 2006. The Administrative Measures for the Competitive Bidding for the Construction of Highway Projects promulgated by the Ministry of Transport on June 6, 2002 shall be abolished simultaneously. |
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