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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II QUALIFICATION APPLICATION CHAPTER III SUPERVISION AND ADMINISTRATION CHAPTER IV PENALTIES CHAPTER V SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. With the intention to improve the benefit of government investment, regulate the acts of bid invitation and tendering on government investment projects, improve the service quality of bidding agencies, and prevent corruption from the sources, the present Measures are formulated in accordance with the Bidding Law of the People's Republic of China, Administrative License Law of the People's Republic of China, the Decision of the State Council on the Reform of Investment Systems, and the Letter of Confirmation on Projects subject to Administrative Examination and Approval Preserved by the National Development and Reform Commission and other relevant laws and regulations. Article 2. All the bidding agencies undertaking the bidding agency business of investment projects financed by the central government within the territory of the People's Republic of China shall undergo qualification determination in light of the present Measures. Article 3. The investment projects financed by the central government as mentioned in the present Measures shall refer to the fixed assets investment projects totally using or partly using the investment capital (including treasury bonds) within the central budget, special construction funds, foreign loan capital and other central revenue investment capital. Where any international financial institution or the government of any loan country has requirements for the bidding and procurement of any investment project financed by the central government that uses sovereign debt, the requirements shall be followed. Article 4. The bidding agency business as mentioned in the present Measures shall include the undertaking of bidding on project owners, bidding on professional project management entities, bidding on entities compiling government investment plan upon the entrustment of the tenderee, and the bidding agency business in such aspects as the survey, feasibility study, design, equipment, materials, construction, supervision and insurance of investment projects that is financed by the central government. Article 5. The National Development and Reform Commission is the administrative department for the determination of the qualification for bidding agencies of investment projects financed by the central government, and shall, according to the Bidding Law and the relevant regulations, make determination and supervision on the qualification of bidding agencies. Article 6. Any bidding agency that has obtained the qualification for international bidding institution of electromechanical products as issued by the Ministry of Commerce may undertake international bidding agency business on electromechanical products of investment projects financed by the central government. For any procurement agency that undertakes the bidding on goods and services subject to government procurement according to the Government Procurement Law, the measures for its qualification determination and administration shall be formulated by the relevant departments separately, and the present Measures shall not prevail. CHAPTER II QUALIFICATION APPLICATION Article 7. The qualifications of bidding agencies of investment projects financed by the central government shall be divided into Grade A and Grade B. Bidding agencies with Grade A qualification may undertake the bidding agency business of all the investment projects financed by the central government. Bidding agencies with Grade B qualification may only undertake the bidding agency business of the investment projects financed by the central government whose total investment is RMB 200 million or less. Article 8. An institution that applies for the qualification of a bidding agency of investment projects financed by the central government shall have the following conditions: (1) Being a legally established social intermediary organization and having the qualification of an independent enterprise legal person; (2) Having no administrative subordination or other interest relationship with any administrative department or other state organ; (3) Having fixed place of business and facilities and business conditions as are needed for carrying out bidding agency business of investment projects financed by the central government; (4) Having sound organizations and internal management rules and regulations; (5) Having corresponding professional force for compiling bid documents and organizing bid assessment; (6) Having set up bid assessment expert database that has a certain scale; (7) The institution having not been subject to the punishment of suspension of qualification or above by the relevant administrative departments in recent three years for violation of the Bidding Law and the relevant administration provisions; (8) The person in charge of the agency having not been subject to criminal penalties for violation of the Bidding Law and the relevant administration provisions; and (9) Other conditions as prescribed by the National Development and Reform Commission. Article 9. An institution that applies for Grade A qualification of a bidding agency shall, apart from having the conditions as prescribed in Article 8 of the present Measures, have the following conditions: (1) The registered capital is no less than RMB 8 million; (2) The professional bidding personnel shall be no less than 50 persons; (3) The technicians in the bidding professionals who have the middle technical title or above shall be no less than 70%; (4) The number of experts in the bid assessment expert database is more than 800 persons; (5) It has undertaken bidding agency business for more than five years; and (6) The number of bidding agency projects undertaken in the last five years is more than 300, and the bid winning money is more than RMB 5 billion accumulatively (based on the bid winning notice, the same hereinafter). Article 10. Any institution that applies for Grade B qualification of a bidding agency shall, apart from having the conditions as prescribed in Article 8 of the present Measures, have the following conditions: (1) The registered capital is no less than RMB 3 million; (2) The bidding practitioners shall be no less than 30 persons; (3) The technicians in the bidding practitioners who have the middle technical title or above shall be no less than 60%; (4) The number of experts in the bid assessment expert database is more than 500 persons; (5) It has undertaken bidding agency business for more than three years; and (6) The number of bidding agency projects undertaken by it in the last 3 years is more than 100, and the bid winning money is more than RMB 1.5 billion accumulatively. Article 11. Any bidding agency which has undertaken bidding agency business for less than 3 years, and has the conditions as prescribed in Article 8 and items (1), (2), (3) and (4) of Article 10, may apply for the preliminary qualification of a bidding agency of investment projects financed by the central government. After it has obtained the preliminary qualification, it may undertake the bidding agency business of investment projects financed by the central government whose total investment is RMB 100 million or less. Article 12. The National Development and Reform Commission shall carry out the work for the determination of the qualification for bidding agencies of investment projects financed by the central government periodically. The notice and requirements for the acceptance of relevant qualifications and the format text of the application materials shall be announced beforehand to ensure that the applicant have sufficient time to prepare the application materials. Article 13. An institution that applies for the qualification of a bidding agency of investment projects financed by the central government shall submit the following materials as required: (1) Application letter for the qualification of a bidding agency of investment projects financed by the central government; (2) Photocopy of the duplicate of the business license of an enterprise legal person (sealed with the seal of confirmation of the original registration organ); (3) Articles of association of the company; (4) Form of conditions on the establishment of enterprise organizations; (5) Basic information of the enterprise personnel; (6) Bid performance; (7) Bid winning notice on bid performance declared; (8) Name list of the personnel in bid assessment expert database; and (9) Other relevant documents. Article 14. The materials of application for the qualification of a bidding agency of investment projects financed by the central government shall be submitted to the development and reform committee at the level of the province at the locality where the enterprise is registered for preliminary examination. The organ of preliminary examination shall make examination on the application materials in light of the relevant provisions, bring forward preliminary examination opinions, and submit the opinions to the National Development and Reform Commission. Article 15. The National Development and Reform Commission shall organize expert committee to make appraisal on the application materials for the qualification that has passed the preliminary examination of the provincial development and reform committee, and grant the qualification of a bidding agency of investment projects financed by the central government on the applicant who has passed the appraisal. The National Development and Reform Commission shall, within 10 days after determining the appraisal result, issue the qualification certificate to the institution that has obtained the qualification of a bidding agency of investment projects financed by the central government, and meanwhile announce the result to society. Article 16. The valid period of the certificate of qualification for a bidding agency of investment projects financed by the central government shall be three years. If any bidding agency needs to extend the valid period of the qualification certificate, it shall file an application with the National Development and Reform Commission 30 days before the expiry of the valid period of the certificate. Article 17. The National Development and Reform Commission shall carry out the appraisal work for upgrading the qualification of bidding agencies of investment projects financed by the central government periodically. If any Grade B or preliminary grade bidding agency has met the condition of a higher grade one year after it has obtained the qualification of a bidding agency of investment projects financed by the central government for the first time, it may file an application for being upgraded as required at the time in the current year when applications for the qualification of bidding agencies are to be accepted. Article 18. Any bidding agency that has any of the following circumstances shall not be granted the qualification of a bidding agency of investment projects financed by the central government: (1) not having the relevant conditions as prescribed in the present Measures; (2) failing to provide truthful and complete materials as required; or (3) having acts in violation of laws and regulations in the bidding agency business, and having been put on records for examination by the judicial organization or having been subject to the punishment of suspension of qualification by the relevant administrative departments in recent three years. Article 19. In case any bidding agency of investment projects financed by the central government alters its name, address or changes its legal representative, it shall apply for alteration of the qualification certificate to the National Development and Reform Commission. In case of occurring division or merger or other major changes in its organization, a bidding agency of investment projects financed by the central government shall reapply for the qualification to the National Development and Reform Commission according to the present Measures. CHAPTER III SUPERVISION AND ADMINISTRATION Article 20. The bidding agencies of investment projects financed by the central government shall, in accordance with the Bidding Law and the relevant administration provisions of the state on investment projects financed by the central government, undertake bidding agency business upon the entrustment of the tenderee, and collect the bidding agency service fees in light of the relevant state provisions. Article 21. The bidding agencies of investment projects financed by the central government shall strictly enforce the relevant systemic provisions on bidding and investment administration, voluntarily accept the supervision of government and society, maintain the lawful rights and interests of each party of the bidding invitation and tendering, and ensure the public interests, as well as undertake the relevant obligation of confidentiality. Article 22. A bidding agency of investment projects financed by the central government shall, within 15 days after the end of the work for bidding of investment projects financed by the central government and issuing the bid winning notice, submit the Report on the Conditions of Bidding for Investment Projects Financed by the Central Government to the National Development and Reform Commission. The National Development and Reform Commission shall make spot check irregularly on bidding projects according to the report on project bidding. Article 23. The National Development and Reform Commission shall be responsible for accepting the inquiry and complaints on the qualification of bidding agencies of relevant investment projects financed by the central government. Article 24. The National Development and Reform Commission shall organize expert committee each year, and on the basis of the report, inquiry, complaint records of project bidding and the performance of bidding projects, and etc., make annual qualification examination on bidding agencies of investment projects financed by the central government. If any bidding agency fails to pass the annual examination in two consecutive years, it shall be degraded or even cancelled of the qualification of a bidding agency. If any bidding agency has any of the following circumstances, it shall be deemed as not up to the standard in annual examination: (1) It has serious violation acts in the year; (2) It fails to submit the Report on the Bidding of Investment Projects Financed by the Central Government and the annual examination materials in a timely manner and in compliance; (3) The annual bid performance of Grade A bidding agency cannot reach RMB 1 billion; or (4) The annual bid performance of Grade B bidding agency cannot reach RMB 500 million . CHAPTER IV PENALTIES Article 25. Where any bidding agency falsifies during the process of applying for its qualification, if it is in the process of application and examination, its application shall be cancelled; if it has obtained the qualification, its qualification shall be cancelled. Article 26. Any bidding agency which submits false materials during the process of an annual examination on its qualification shall be given the punishment of suspension or cancellation of qualification according to the circumstances. Article 27. Where the way of bidding under entrustment is adopted for any investment project financed by the central government, if no bidding agency that has the corresponding qualification is entrusted for handling the bidding affairs, the bid winning result shall be deemed as invalid. In case any bidding agency of investment projects financed by the central government undertakes the bidding agency business by exceeding the scope as prescribed by the present Measures, it shall be given the punishment of suspension of qualification. Article 28. If any bidding agency of investment projects financed by the central government lends, transfers or alters its qualification certificate, it shall be given the punishment of cancellation of the qualification. Article 29. In case any bidding agency of investment projects financed by the central government has the following acts in the bidding agency business, the National Development and Reform Commission shall, according to the circumstances, give it such punishments as warning, suspension of its qualification or cancellation of its qualification: (1) revealing the relevant information and materials relating to the bidding agency business that shall be kept secret; (2) colluding with the tenderee or the tenderer to damage the national interests, public interests or the lawful rights and interests of other people; (3) making negotiation with the tenderer on the tender price, and tender scheme and other substantive contents; or (4) amending bid documents, tender offer and bid winning notice without permission. If the bid winning results are affected by the aforesaid acts, the bid winning result shall be deemed as invalid. Article 30. In case any bidding agency has any of the following acts, the National Development and Reform Commission shall order it to correct, and give it a punishment of warning according to the circumstances, or may impose upon it a certain amount of fine. For acts in item (5), a fine of RMB 10,000 up to 50,000 may be imposed upon it, for other acts, a fine of less than RMB 10,000 may be imposed upon it: (1) It fails to publicize the announcement for open tender on the designated media; (2) The time limit for issuing the bid documents or documents of preliminary examination on the qualification does not comply with the relevant provisions; (3) The constitution of the bid assessment committee and the expert structure do not comply with the relevant provisions; (4) It fails to make public bidding once again when the number of tenderers does not comply with the legal requirements; (5) It restricts or excludes potential tenderers with unreasonable conditions, discriminates against potential tenderers or restricts the competition between the tenderers; (6) It fails to report the Report on the Bidding of Investment Projects Financed by the Central Government as required; or (7) Other acts in violation of laws and regulations and the relevant provisions. Article 31. The result of punishment on bidding agencies shall be announced to the society on the website of the National Development and Reform Commission in a timely manner. In case any bidding agency causes any damage to others due to its illegal acts or irregularities, it shall assume compensation liabilities according to law; if it constitutes a crime, it shall be subject to criminal liabilities by being transferred to the judicial organizations. CHAPTER V SUPPLEMENTARY PROVISIONS Article 32. The power to interpret the present Measures shall remain with the National Development and Reform Commission. Article 33. The present Measures shall come into force as of November 1, 2005. |
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