Implementing Regulations on the Tendering and Bidding Law of the People's Republic of China (Revised in 2019)
Implementing Regulations on the Tendering and Bidding Law of the People's Republic of China (Revised in 2019)
Implementing Regulations on the Tendering and Bidding Law of the People's Republic of China (Revised in 2019)
Order of the State Council of the People's Republic of China No.709
March 2, 2019
(Promulgated by the Order of the State Council of the People's Republic of China No.613 on December 20, 2011; revised by the Decision of the State Council on Revising and Repealing Certain Administrative Regulations on March 1, 2017; amended according to the Decision of the State Council on Revising and Repealing Certain Administrative Regulations on March 19, 2018; amended again according to the Decision of the State Council on Revising Certain Administrative Regulations on March 2, 2019)
Chapter I General Principles
Articles 1 For the purpose of regulating the tendering and bidding related activities and in accordance with the Tendering and Bidding Law of the People's Republic of China (the "Tendering and Bidding Law"), these Regulations are enacted.
Article 2 The engineering construction projects mentioned in Article 3 of the Tendering and Bidding Law refer to the construction works and goods and service relating to the construction works.
The works mentioned in above paragraph refers to construction works, including, without limitation, the new construction, reconstruction and expansion of buildings and structures and relevant improvement, removal, and renovation; The goods relating to engineering construction refer to the equipment and materials and other articles necessary for realization of basic function of projects and constituting integral parts of the construction projects; The service relating to the construction projects refers to the survey, design, supervision and other service necessary for completion of engineering constructions.
Article 3 The scope and scale of the engineering construction projects that must be subject to tendering in accordance with the law (the "Project Subject to Tendering") shall be determined by the development and reform authority of the State Council together with other relevant authorities of the State Council, which may be put into implementation after approved by the State Council.
Article 4 The development and reform authority of the State Council shall be responsible for the guidance and coordination of national tending and bidding activities and will implement supervision and examination of the tendering and bidding activities for the material construction projects in the whole country. The Ministry of Industry and Information Technology, the Ministry of Housing and Urban-rural Development, the Ministry of Transport, the Ministry of Railway, the Ministry of Water Resources, the Ministry of Commerce and other authorities of the State Council shall carry out supervision on relevant tendering and bidding activities based upon the division of duties and authorities.
The development and reform authorities of the people's government above county level shall provide guidance and coordinate the tendering and bidding activities in their respective jurisdiction. The relevant authorities of the people's government above county level shall carry out supervision on the tendering and bidding activities and discover and investigate any illegal conducts occurred in the tendering and bidding activities based upon their respective duties and authorities. In the event that any additional provisions are made by the people's government above county level on the supervision related duties and authorization of their affiliated authorities, then such additional provisions shall prevail.
The authorities of finance shall carry out supervision on the implementation of governmental purchase policies of any governmental purchase engineering construction projects subject to the tendering and bidding in accordance with the law.
The supervision and inspection authorities shall carry out supervision and inspection on any parties participated in relevant tendering and bidding activities in accordance with the law.
Article 5 The local people's governments above city level and establishing districts may, as the case may be, establish uniform tendering and bidding trading market to provide service for tendering and bidding activities. The tendering and bidding trading market shall not be administratively subordinated to the administrative and supervision authorities and shall not be for profitmaking purpose.
It is encouraged to carry out electronic tendering and bidding activities via information network.
Article 6 All public servants are prohibited to interfere with the tendering and bidding activities by any illegal means.
Chapter II Tendering
Article 7 For any projects that are subject to approval and review procedures and must undergone the tender and bidding procedures in accordance with the law, the scope, means, and organization types for the tender shall be reported to relevant project review and approval authorities for review and approval. The project review and approval authorities shall, in timely manner, notify relevant administrative supervision authorities of the reviewed and approved scope, means, and organization types for the tender.
Article 8 For any projects that the state-owned funds are in controlling or dominant positions, public bid invitation shall be carried out; however, private bid invitation may be carried out in the event of any one of the following situations:
1. The projects are technically complex and with special requirements or are subject to the limitation of natural environment, and only few potential bidders are available;
2. The costs of the project by means of open tendering take up much too large a proportion in the contract value of the project.
The projects that are under the situation listed above Item (2) and are subject to the provisions of Article 7 hereto shall be recognized by the project review and approval authorities upon review and approval of the projects; other projects shall be recognized by relevant administrative supervision authorities with the application by the tenderees.
Article 9 In addition to the special situations that public bid invitation may not be carried out as set forth in Article 66 of the Tendering and Bidding Law, public bid invitation may also not be carried out in the event of any one of following events:
1. Irreplaceable patents or know-how are required;
2. Purchaser can construct, produce or provider the project or goods or service in accordance with the law;
3. The investors of franchised operating projects selected by means of tendering can construct, produce or provide the project, goods or service;
4. It is required to purchase works, goods or service from original bidder, otherwise the construction or functional supporting requirements will be affected;
5. Other special situations set forth in any applicable laws and regulations.
Any tenderee who practices fraud to cause the application of above paragraph is in violation of the evasion of tendering as set forth in Article 4 of the Tendering and Bidding Law.
Article 10 The provisions under Article 12.2 of the Tendering and Bidding Law that tenderee who has the capacity to prepare tender documents and organize bid evaluations refer to that tenderee who has the professional staff in the fields of technology and commerce compatible to the scale and complexity of the projects under tendering.
Article 11 The Ministry of Housing and Urban-Rural Development, the Ministry of Commerce, the National Development and Reform Commission, the Ministry of Industry and Information Technology and other authorities of the State Council shall, based upon their respective duties and authorization, carry out supervision and administration on tender agencies.
Article 12 Tender agencies shall have proper professional staff who have abilities to prepare tendering documents or organize the bid evaluation and other corresponding abilities.
Article 13 Tender agencies shall carry out tender agency business within the scope of authorization by their respective tenderees and no organization or individual may interfere with such business illegally.
Tender agencies shall, upon carrying out tender agency services, observe the provisions of Tendering and Bidding Law and these Regulations. The tender agency shall not bid for themselves or on behalf of other bidders in the projects with tenders carried out by them, nor provide advice for the bidder of such projects.
Article 14 Tenderees shall execute written agency contracts with their tender agencies, and the charging standards under which shall be satisfactory to the provisions of relevant laws and regulations.
Article 15 For any projects under public bid invitation, tender notice and tender documents shall be prepared and issued in accordance with the Tendering and Bidding Law and these Regulations.
Tenderees who carry out qualification examination for potential bidders with the methods of pre-qualification shall release the pre-qualification notices and prepare prequalification documents.
Prequalification notices and tender notices of projects subject to tender procedures shall be released in the mediums designated by the development and reform authority of the State Council in accordance with the law. The prequalification notices and tender notices of same project but released in different mediums shall be kept the same concerning their contents. The designated mediums shall not charge any fees for the release of prequalification notices and tender notices of the projects subject to tendering.
The prequalification documents and tender documents shall be prepared in accordance with the standard texts prepared by the development and reform authority of the State Council together with other administrative supervision authorities.
Article 16 Tenderees shall sell prequalification documents or tender documents as per the time and place set forth in prequalification notice, tender notice and tender. Prequalification documents or tenderdocuments shall be available for sale at least 5 days.
Tenderees shall charge only such fees for the sale of prequalification or tender documents as costs for compensation for the printing and mailing of such documents and shall not do so for profitmaking purpose.
Article 17 Tenderees shall affirm a reasonable deadline for submission of prequalification application documents.
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Order of the State Council of the People's Republic of China No.709
March 2, 2019
(Promulgated by the Order of the State Council of the People's Republic of China No.613 on December 20, 2011; revised by the Decision of the State Council on Revising and Repealing Certain Administrative Regulations on March 1, 2017; amended according to the Decision of the State Council on Revising and Repealing Certain Administrative Regulations on March 19, 2018; amended again according to the Decision of the State Council on Revising Certain Administrative Regulations on March 2, 2019)
Chapter I General Principles
Articles 1 For the purpose of regulating the tendering and bidding related activities and in accordance with the Tendering and Bidding Law of the People's Republic of China (the "Tendering and Bidding Law"), these Regulations are enacted.
Article 2 The engineering construction projects mentioned in Article 3 of the Tendering and Bidding Law refer to the construction works and goods and service relating to the construction works.
The works mentioned in above paragraph refers to construction works, including, without limitation, the new construction, reconstruction and expansion of buildings and structures and relevant improvement, removal, and renovation; The goods relating to engineering construction refer to the equipment and materials and other articles necessary for realization of basic function of projects and constituting integral parts of the construction projects; The service relating to the construction projects refers to the survey, design, supervision and other service necessary for completion of engineering constructions.
Article 3 The scope and scale of the engineering construction projects that must be subject to tendering in accordance with the law (the "Project Subject to Tendering") shall be determined by the development and reform authority of the State Council together with other relevant authorities of the State Council, which may be put into implementation after approved by the State Council.
Article 4 The development and reform authority of the State Council shall be responsible for the guidance and coordination of national tending and bidding activities and will implement supervision and examination of the tendering and bidding activities for the material construction projects in the whole country. The Ministry of Industry and Information Technology, the Ministry of Housing and Urban-rural Development, the Ministry of Transport, the Ministry of Railway, the Ministry of Water Resources, the Ministry of Commerce and other authorities of the State Council shall carry out supervision on relevant tendering and bidding activities based upon the division of duties and authorities.
The development and reform authorities of the people's government above county level shall provide guidance and coordinate the tendering and bidding activities in their respective jurisdiction. The relevant authorities of the people's government above county level shall carry out supervision on the tendering and bidding activities and discover and investigate any illegal conducts occurred in the tendering and bidding activities based upon their respective duties and authorities. In the event that any additional provisions are made by the people's government above county level on the supervision related duties and authorization of their affiliated authorities, then such additional provisions shall prevail.
The authorities of finance shall carry out supervision on the implementation of governmental purchase policies of any governmental purchase engineering construction projects subject to the tendering and bidding in accordance with the law.
The supervision and inspection authorities shall carry out supervision and inspection on any parties participated in relevant tendering and bidding activities in accordance with the law.
Article 5 The local people's governments above city level and establishing districts may, as the case may be, establish uniform tendering and bidding trading market to provide service for tendering and bidding activities. The tendering and bidding trading market shall not be administratively subordinated to the administrative and supervision authorities and shall not be for profitmaking purpose.
It is encouraged to carry out electronic tendering and bidding activities via information network.
Article 6 All public servants are prohibited to interfere with the tendering and bidding activities by any illegal means.
Chapter II Tendering
Article 7 For any projects that are subject to approval and review procedures and must undergone the tender and bidding procedures in accordance with the law, the scope, means, and organization types for the tender shall be reported to relevant project review and approval authorities for review and approval. The project review and approval authorities shall, in timely manner, notify relevant administrative supervision authorities of the reviewed and approved scope, means, and organization types for the tender.
Article 8 For any projects that the state-owned funds are in controlling or dominant positions, public bid invitation shall be carried out; however, private bid invitation may be carried out in the event of any one of the following situations:
1. The projects are technically complex and with special requirements or are subject to the limitation of natural environment, and only few potential bidders are available;
2. The costs of the project by means of open tendering take up much too large a proportion in the contract value of the project.
The projects that are under the situation listed above Item (2) and are subject to the provisions of Article 7 hereto shall be recognized by the project review and approval authorities upon review and approval of the projects; other projects shall be recognized by relevant administrative supervision authorities with the application by the tenderees.
Article 9 In addition to the special situations that public bid invitation may not be carried out as set forth in Article 66 of the Tendering and Bidding Law, public bid invitation may also not be carried out in the event of any one of following events:
1. Irreplaceable patents or know-how are required;
2. Purchaser can construct, produce or provider the project or goods or service in accordance with the law;
3. The investors of franchised operating projects selected by means of tendering can construct, produce or provide the project, goods or service;
4. It is required to purchase works, goods or service from original bidder, otherwise the construction or functional supporting requirements will be affected;
5. Other special situations set forth in any applicable laws and regulations.
Any tenderee who practices fraud to cause the application of above paragraph is in violation of the evasion of tendering as set forth in Article 4 of the Tendering and Bidding Law.
Article 10 The provisions under Article 12.2 of the Tendering and Bidding Law that tenderee who has the capacity to prepare tender documents and organize bid evaluations refer to that tenderee who has the professional staff in the fields of technology and commerce compatible to the scale and complexity of the projects under tendering.
Article 11 The Ministry of Housing and Urban-Rural Development, the Ministry of Commerce, the National Development and Reform Commission, the Ministry of Industry and Information Technology and other authorities of the State Council shall, based upon their respective duties and authorization, carry out supervision and administration on tender agencies.
Article 12 Tender agencies shall have proper professional staff who have abilities to prepare tendering documents or organize the bid evaluation and other corresponding abilities.
Article 13 Tender agencies shall carry out tender agency business within the scope of authorization by their respective tenderees and no organization or individual may interfere with such business illegally.
Tender agencies shall, upon carrying out tender agency services, observe the provisions of Tendering and Bidding Law and these Regulations. The tender agency shall not bid for themselves or on behalf of other bidders in the projects with tenders carried out by them, nor provide advice for the bidder of such projects.
Article 14 Tenderees shall execute written agency contracts with their tender agencies, and the charging standards under which shall be satisfactory to the provisions of relevant laws and regulations.
Article 15 For any projects under public bid invitation, tender notice and tender documents shall be prepared and issued in accordance with the Tendering and Bidding Law and these Regulations.
Tenderees who carry out qualification examination for potential bidders with the methods of pre-qualification shall release the pre-qualification notices and prepare prequalification documents.
Prequalification notices and tender notices of projects subject to tender procedures shall be released in the mediums designated by the development and reform authority of the State Council in accordance with the law. The prequalification notices and tender notices of same project but released in different mediums shall be kept the same concerning their contents. The designated mediums shall not charge any fees for the release of prequalification notices and tender notices of the projects subject to tendering.
The prequalification documents and tender documents shall be prepared in accordance with the standard texts prepared by the development and reform authority of the State Council together with other administrative supervision authorities.
Article 16 Tenderees shall sell prequalification documents or tender documents as per the time and place set forth in prequalification notice, tender notice and tender. Prequalification documents or tenderdocuments shall be available for sale at least 5 days.
Tenderees shall charge only such fees for the sale of prequalification or tender documents as costs for compensation for the printing and mailing of such documents and shall not do so for profitmaking purpose.
Article 17 Tenderees shall affirm a reasonable deadline for submission of prequalification application documents.
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