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Opinions on Effectively Implementing the Regulations on the Implementation of the Bidding and Tendering Law
2019-11-26
The Development and Reform Commission, the Legal Affairs Office, and the Ministry of Supervision's "Opinions on Properly Implementing the Regulations on the Implementation of the Bidding Law" have been approved by the State Council. They are now forwarded to you for serious implementation.
General Office of the State Council forwards the Development and Reform Commission Legal Office and Supervision Department
Regarding the Implementation of the Tendering and Bidding Law Regulations
Notice on Opinions for the Implementation Work
State Council Office Document [2012] No. 21
People's Governments of all provinces, autonomous regions, and municipalities directly under the Central Government, all ministries and commissions of the State Council, and all directly affiliated institutions:
The Development and Reform Commission, Legal Office, and Supervision Department's "Opinions on the Implementation Work of the Tendering and Bidding Law Regulations" have been approved by the State Council and are hereby forwarded to you for serious implementation.
General Office of the State Council
April 14, 2012
Opinions on the Implementation Work of the Tendering and Bidding Law Regulations
(Development and Reform Commission, Legal Office, Supervision Department)
The "Regulations on the Implementation of the Tendering and Bidding Law of the People's Republic of China" (hereinafter referred to as the "Regulations") have been in effect since February 1, 2012. To ensure the effective implementation of the Regulations, the following opinions are proposed:
1. Fully recognize the importance and urgency of implementing the Regulations
Since the "Tendering and Bidding Law of the People's Republic of China" (hereinafter referred to as the "Tendering and Bidding Law") came into effect on January 1, 2000, it has played an important role in promoting fair competition, ensuring procurement quality, saving procurement funds, preventing and punishing corruption. However, in practice, some regions still face prominent issues such as evading tendering, false tendering, and collusive bidding that need to be addressed. Based on a thorough summary of the implementation experience of the Tendering and Bidding Law, the Regulations have made targeted institutional arrangements to solve current prominent problems. The effective implementation of the Regulations is related to the long-term healthy development of the tendering and bidding market, the formation of an open, fair, and just market competition order, and the high-quality, efficient, and clean advancement of key construction projects and livelihood projects. All regions and departments should, from the perspective of improving the socialist market economic system, fully recognize the importance and urgency of implementing the Regulations and take effective measures to ensure all provisions of the Regulations are implemented.
2. Strengthen publicity, study, and training of the Regulations
(1) Extensive publicity. Administrative supervision departments of people's governments at all levels should make full use of media such as radio, television, newspapers, and the internet, adopting expert interviews, legal interpretations, special reports, case explanations, knowledge competitions, and other methods to widely publicize the Regulations. Designated media for publishing tender announcements and relevant industry organizations should formulate publicity work plans and ensure their implementation.
(2) In-depth study. Administrative supervision departments of people's governments at all levels should organize tendering and bidding supervision and management personnel to study the Regulations carefully and continuously improve their administrative supervision and law enforcement capabilities. Tenderers, bidders, and tendering agencies should regard strengthening the study of the Regulations as a fundamental task to improve the professional quality of their teams, further standardizing tendering and bidding behaviors and tendering agency behaviors. Evaluation experts should focus on studying the provisions related to evaluation discipline and procedures in the Regulations to enhance their awareness of objective and fair evaluation.
(3) Organize training. Relevant departments of the State Council should provide specialized training for personnel engaged in tendering and bidding supervision and management within their departments and systems, incorporating the study of the Regulations into training and assessment content. The State-owned Assets Supervision and Administration Commission should organize training for relevant personnel of central enterprises. Departments of people's governments at or above the provincial level that establish evaluation expert databases should conduct centralized training for evaluation experts. Relevant industry organizations should organize training for their member units. All training must ensure quality, must not be profit-oriented, and must not charge arbitrary fees.
3. Comprehensive review of regulations related to tendering and bidding
(1) Scope of review. All rules and normative documents involving tendering and bidding should be included in the review scope. For local regulations related to tendering and bidding, the people's government at the same level should organize a review and propose suggestions for cleanup to the people's congress or its standing committee at the same level according to law.
(2) Content of review. Provisions that restrict or exclude potential bidders, arbitrarily set approval matters, increase approval steps, interfere with the autonomy of parties, increase enterprise burdens, or violate the Regulations, as well as conflicting or contradictory provisions, should be comprehensively reviewed. Individual clauses in relevant provisions with the above issues should be amended; provisions whose main content violates the Regulations or does not meet the needs of economic and social development should be abolished.
(3) Review method. Following the principle of "who formulates, who reviews," the drafting agency or leading department should determine the specific review scope and propose review opinions. Development and reform departments at all levels should coordinate with legal work institutions and supervision agencies at the same level to organize, coordinate, supervise, and guide the review work. During the review process, opinions from all parties, especially market entities such as tenderers, bidders, and tendering agencies, as well as relevant experts, scholars, research institutions, and industry organizations, should be widely solicited and feedback on the adoption of opinions should be provided in a timely manner in an appropriate form.
(4) Progress arrangement. Before July 31, 2012, relevant departments of the State Council should submit their review opinions to the Development and Reform Commission, with copies sent to the Legal Office and Supervision Department; review opinions from relevant departments of local people's governments at all levels should be summarized by the development and reform departments at the same level and reported to higher-level development and reform departments, with copies sent to higher-level legal work institutions and supervision agencies. Agencies responsible for amending or abolishing rules and normative documents should complete the amendment or abolition procedures by December 31, 2012, and announce the review results to the public.
(5) Consolidate results. To effectively maintain the unity of tendering and bidding rules and avoid multiple authorities issuing conflicting policies, development and reform departments at all levels should work with relevant departments to establish a consultation mechanism for tendering and bidding policy regulations, ensuring that formulated policies strictly comply with higher-level laws and fully solicit opinions from relevant parties. Legal work institutions at all levels should strengthen the filing and review of tendering and bidding regulations, resolutely correcting violations of higher-level laws and conflicts or contradictions between different provisions.
4. Accelerate the improvement of supporting systems for the Regulations
(1) Improve the mandatory tendering system for construction projects. The Development and Reform Commission should work with relevant departments to promptly revise the "Regulations on the Scope and Scale Standards of Tendering for Construction Projects," scientifically and reasonably determine the scope and scale standards of construction projects that must be tendered by law, and publish them after approval by the State Council.
(2) Establish an electronic tendering and bidding system. The Development and Reform Commission should work with relevant departments to promptly formulate electronic tendering and bidding methods and related technical specifications, promote the establishment of an electronic tendering and bidding system that fits national conditions, has clear positioning, clear division of labor, and interconnectivity, further improving the efficiency and transparency of tendering and bidding activities.
(3) Establish a professional qualification system for practitioners. The Ministry of Human Resources and Social Security should work with the Development and Reform Commission to promptly formulate management measures for bidding professional qualifications. Relevant departments of the State Council responsible for the qualification recognition of tendering agencies should promptly revise relevant management measures to ensure the connection between agency qualification recognition and the professional qualification system for personnel.
(4) Improve the standard tender document system. The Development and Reform Commission should work with relevant departments to promptly prepare standard tender documents for goods and services and prequalification documents, build a standard tender document system covering major procurement targets, various contract types, and different project scales, and improve the quality and efficiency of preparing prequalification and tender documents.
(5) Establish a comprehensive evaluation expert database system. The Development and Reform Commission, together with relevant departments of the State Council, shall draft and formulate management measures to regulate the review, assessment training, dynamic management, and random supervision of evaluation experts entering the database. Comprehensive evaluation expert databases at all levels should gradually achieve resource sharing and interconnection.
(6) Promote the establishment of a bidding credit system. The Development and Reform Commission, together with relevant departments of the State Council, shall, based on the practice of the announcement system for records of bidding violations and in conjunction with advancing the integrity system in the construction sector, study and formulate bidding credit evaluation standards and specific measures, gradually establishing and improving mechanisms that encourage integrity and punish dishonesty.
5. Further Strengthen and Improve Administrative Supervision
(1) Strengthen supervision and management. Project approval and verification departments shall strictly perform the responsibilities of approving bidding content, approving the scope, methods, and organizational forms of bidding during project approval and verification. Strictly regulate bidding activities of state-owned enterprises and institutions, especially central enterprises, implement supervisory responsibilities, and effectively change the lack of supervision. Strictly enforce the professional qualification system for bidding personnel. Relevant departments must ensure that bidding agencies have a certain number of professionals with bidding qualifications when certifying their qualifications. Relevant administrative supervision departments shall strengthen supervision over the selection of evaluation committee members, the selection of evaluation experts, and evaluation activities, regulate the discretionary power of evaluation experts, and ensure that evaluation behavior is objective, fair, and scientific; strengthen supervision over contract signing and performance to prevent signing "yin-yang contracts," illegal subcontracting, and irregular subcontracting; strengthen supervision and constraints on contract changes for projects that must be bid by law to prevent illegal acts such as "low-middle-high settlement"; strengthen process supervision, promptly investigate and handle illegal acts according to law, and may order suspension of bidding activities if failure to correct in time would cause irreparable losses.
(2) Increase law enforcement efforts. Relevant administrative supervision departments should further strengthen law enforcement awareness and intensify administrative supervision and law enforcement. Focus on government investment projects and projects where state-owned investment holds controlling or leading positions, inspecting behaviors such as bidders evading bidding, false bidding, restricting or excluding potential bidders, leaking bid price information, collusion among bidders, bidding under others' names, falsification, irregular agency by bidding agencies, evaluation committee members not objectively and fairly performing duties, winning bidders not strictly performing contracts, illegal subcontracting, and irregular subcontracting. Once identified, serious investigation and punishment shall be carried out, and records of violations shall be published. Cases suspected of crimes shall be transferred to judicial authorities.
(3) Standardize supervisory behavior. While performing their respective duties, departments should strengthen coordination and form a supervisory synergy. Relevant administrative supervision departments shall accept complaints that meet conditions according to law and promptly make decisions. Relevant departments and their staff shall perform supervisory management duties according to law and shall not illegally set approval items or add management procedures; reasonably determine administrative supervision boundaries and shall not illegally interfere with bidders independently preparing bidding documents, forming evaluation committees, determining winning bidders, or issuing winning notifications; shall not illegally interfere with bidders' independent bidding and evaluation committees' independent review. Bidding agencies may legally conduct cross-regional business, and no region or department shall restrict this by registration or filing. Supervisory organs at all levels shall strengthen supervision and inspection of administrative supervision departments and their staff, seriously investigate and handle issues such as failure to perform duties according to law and illegal interference in bidding activities. Audit organs at all levels shall strengthen audit supervision over bidding administrative supervision departments and bidding parties according to law.
(4) Innovate management models. Local people's governments at or above the county level may actively explore establishing bidding administrative supervision systems with clear division of labor, responsibility implementation, effective execution, and coordinated operation based on local conditions. Municipal and higher-level local people's governments with conditions may establish unified and standardized bidding transaction venues that are not subordinate to any administrative supervision department and are non-profit, providing services for administrative supervision and market transactions based on local conditions.
6. Ensure the Implementation of the Regulations
(1) Formulate implementation plans. Local people's governments at all levels and relevant departments of the State Council shall strengthen organizational leadership for the implementation of the Regulations, clarify responsibilities, and make specific arrangements based on local and departmental realities. For work requiring joint efforts of multiple departments, the leading department shall draft specific plans together with relevant departments and promote coordinated and orderly progress.
(2) Inspect implementation status. The Development and Reform Commission, Legal Affairs Office, and Supervision Department shall form joint inspection teams in a timely manner to inspect the implementation status across regions and departments. Provincial-level development and reform departments shall, together with legal work institutions and supervisory organs at the same level, organize special inspections by October 31, 2012, in conjunction with special governance work on prominent issues in the construction sector.
