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Regulations on the Implementation of the Tendering and Bidding Law of the People's Republic of China
2019-12-18
The "Regulations on the Implementation of the Tendering and Bidding Law of the People's Republic of China" were approved at the 183rd Executive Meeting of the State Council on November 30, 2011, and are hereby promulgated, effective from February 1, 2012.
Order of the State Council of the People's Republic of China
No. 613
The "Regulations for the Implementation of the Tendering and Bidding Law of the People's Republic of China" were adopted at the 183rd executive meeting of the State Council on November 30, 2011, and are hereby promulgated, effective from February 1, 2012.
Premier Wen Jiabao
December 20, 2011
Regulations for the Implementation of the Tendering and Bidding Law of the People's Republic of China
Chapter 1 General Provisions
Article 1 To regulate tendering and bidding activities, these regulations are formulated in accordance with the "Tendering and Bidding Law of the People's Republic of China" (hereinafter referred to as the Tendering and Bidding Law).
Article 2 The engineering construction projects referred to in Article 3 of the Tendering and Bidding Law refer to projects as well as goods and services related to engineering construction.
The engineering referred to in the preceding paragraph means construction projects, including new construction, reconstruction, expansion, and related decoration, demolition, repair, etc., of buildings and structures; goods related to engineering construction refer to equipment, materials, etc., that constitute an inseparable part of the project and are necessary to achieve the basic functions of the project; services related to engineering construction refer to services such as surveying, design, and supervision required to complete the project.
Article 3 The specific scope and scale standards of engineering construction projects that must be tendered by law shall be formulated by the development and reform departments of the State Council in conjunction with relevant departments of the State Council, and shall be promulgated and implemented after approval by the State Council.
Article 4 The development and reform departments of the State Council guide and coordinate nationwide tendering and bidding work and supervise and inspect the tendering and bidding activities of major national construction projects. The departments of industry and information technology, housing and urban-rural development, transportation, railways, water resources, commerce, etc., of the State Council shall supervise relevant tendering and bidding activities according to their prescribed duties.
The development and reform departments of local people's governments at or above the county level guide and coordinate tendering and bidding work within their administrative regions. Relevant departments of local people's governments at or above the county level shall supervise tendering and bidding activities according to their prescribed duties and investigate and deal with illegal acts in tendering and bidding activities according to law. If local people's governments at or above the county level have other provisions on the division of supervisory responsibilities for tendering and bidding activities of their subordinate departments, those provisions shall prevail.
The financial departments shall supervise the budget execution and government procurement policy implementation of government procurement engineering construction projects that implement tendering and bidding according to law.
Supervisory organs shall supervise the objects related to tendering and bidding activities according to law.
Article 5 Local people's governments at or above the municipal level with districts may establish unified and standardized tendering and bidding transaction venues as needed to provide services for tendering and bidding activities. Tendering and bidding transaction venues shall not have a subordinate relationship with administrative supervision departments and shall not operate for profit.
The state encourages the use of information networks for electronic tendering and bidding.
Article 6 It is prohibited for state staff to illegally interfere with tendering and bidding activities in any way.
Chapter 2 Tendering
Article 7 For projects that must be tendered by law and require project approval or verification according to national regulations, the scope of tendering, tendering methods, and tendering organization forms shall be submitted to the project approval or verification departments for approval or verification. The project approval or verification departments shall promptly notify the relevant administrative supervision departments of the approved or verified scope of tendering, tendering methods, and tendering organization forms.
Article 8 Projects that must be tendered by law and in which state-owned funds hold a controlling or dominant position shall be publicly tendered; however, invitation to tender may be used in the following circumstances:
(1) Technically complex, with special requirements, or restricted by natural environment, with only a few potential bidders available;
(2) The cost of using public tendering accounts for an excessively large proportion of the project contract amount.
For the circumstances listed in item (2) of the preceding paragraph, if the project falls under the projects stipulated in Article 7 of these regulations, the project approval or verification departments shall make the determination during project approval or verification; for other projects, the tenderer shall apply to the relevant administrative supervision departments for determination.
Article 9 Except for special cases where tendering may be exempted as stipulated in Article 66 of the Tendering and Bidding Law, tendering may be exempted in the following circumstances:
(1) The need to use irreplaceable patents or proprietary technologies;
(2) The purchaser is legally able to build, produce, or provide by itself;
(3) The investor of a franchise project selected through tendering is legally able to build, produce, or provide by itself;
(4) The need to purchase engineering, goods, or services from the original winning bidder, otherwise construction or functional matching requirements will be affected;
(5) Other special circumstances stipulated by the state.
If the tenderer falsifies to apply the provisions of the preceding paragraph, it constitutes evasion of tendering as stipulated in Article 4 of the Tendering and Bidding Law.
Article 10 The tenderer referred to in the second paragraph of Article 12 of the Tendering and Bidding Law, who has the ability to prepare tender documents and organize bid evaluation, means that the tenderer has professional personnel in technical, economic, and other aspects commensurate with the scale and complexity of the tender project.
Article 11 The qualifications of tendering agencies shall be recognized by relevant departments in accordance with laws and regulations of the State Council.
The departments of housing and urban-rural development, commerce, development and reform, industry and information technology, etc., of the State Council shall supervise and manage tendering agencies according to their prescribed duties.
Article 12 Tendering agencies shall have a certain number of professionals who have obtained tendering professional qualifications. The specific methods for obtaining tendering professional qualifications shall be formulated by the human resources and social security department of the State Council in conjunction with the development and reform department of the State Council.
Article 13 Tendering agencies shall carry out tendering agency business within the scope of their qualification permits and the scope entrusted by the tenderer, and no unit or individual shall illegally interfere.
Tendering agencies acting as agents for tendering shall comply with the provisions of the Tendering and Bidding Law and these regulations regarding tenderers. Tendering agencies shall not bid or act as agents for bidding in the tender projects they represent, nor provide consulting services to bidders in the tender projects they represent.
Tendering agencies shall not alter, rent, lend, or transfer their qualification certificates.
Article 14 The tenderer shall sign a written entrustment contract with the entrusted tendering agency, and the agreed charging standards shall comply with relevant national regulations.
Article 15 For projects subject to public tendering, tender announcements shall be issued and tender documents prepared in accordance with the Tendering and Bidding Law and these regulations.
If the tenderer uses a prequalification method to review the qualifications of potential bidders, a prequalification announcement shall be issued and prequalification documents prepared.
The prequalification announcement and tender announcement for projects that must be tendered by law shall be published in media designated by the State Council's development and reform department according to law. The content of the prequalification announcement or tender announcement for the same tender project published in different media shall be consistent. No fees shall be charged for publishing domestic prequalification announcements and tender announcements for projects that must be tendered by law in the designated media.
The preparation of prequalification documents and tender documents for projects that must be tendered by law shall use the standard texts formulated by the State Council's development and reform department in conjunction with relevant administrative supervision departments.
Article 16: The tenderer shall sell the prequalification documents or tender documents at the time and place specified in the prequalification announcement, tender announcement, or invitation to tender. The sales period for prequalification documents or tender documents shall not be less than 5 days.
The fees charged by the tenderer for selling prequalification documents and tender documents shall be limited to compensating printing and mailing costs and shall not be for profit.
Article 17: The tenderer shall reasonably determine the time for submitting prequalification application documents. For projects that must be tendered by law, the time for submitting prequalification application documents shall not be less than 5 days from the date the prequalification documents stop being sold.
Article 18: Prequalification shall be conducted according to the standards and methods specified in the prequalification documents.
For projects that must be tendered by law where state-owned funds hold a controlling or dominant position, the tenderer shall establish a qualification review committee to review the prequalification application documents. The qualification review committee and its members shall comply with the provisions of the Tendering and Bidding Law and these regulations concerning the evaluation committee and its members.
Article 19: After the prequalification is completed, the tenderer shall promptly issue a prequalification result notice to the prequalification applicants. Applicants who do not pass the prequalification do not have the qualification to bid.
If fewer than three applicants pass the prequalification, the tender shall be reissued.
Article 20: If the tenderer adopts a post-qualification method to review the qualifications of bidders, the evaluation committee shall review the qualifications of bidders according to the standards and methods specified in the tender documents after the bid opening.
Article 21: The tenderer may make necessary clarifications or modifications to the issued prequalification documents or tender documents. If the content of the clarification or modification may affect the preparation of prequalification application documents or bidding documents, the tenderer shall notify all potential bidders who have obtained the prequalification or tender documents in writing at least 3 days before the deadline for submitting prequalification application documents or at least 15 days before the bid submission deadline; if less than 3 or 15 days, the tenderer shall extend the deadline for submitting prequalification application documents or bidding documents accordingly.
Article 22: Potential bidders or other interested parties who have objections to the prequalification documents shall raise them at least 2 days before the deadline for submitting prequalification application documents; objections to the tender documents shall be raised at least 10 days before the bid submission deadline. The tenderer shall respond within 3 days of receiving the objection; before responding, the tendering and bidding activities shall be suspended.
Article 23: If the content of the prequalification documents or tender documents prepared by the tenderer violates mandatory provisions of laws and administrative regulations, violates the principles of openness, fairness, justice, and good faith, and affects the prequalification results or the bidding of potential bidders, the tenderer of projects that must be tendered by law shall re-tender after modifying the prequalification documents or tender documents.
Article 24: When the tenderer divides the tender project into lots, it shall comply with the relevant provisions of the Tendering and Bidding Law and shall not use the division of lots to restrict or exclude potential bidders. The tenderer of projects that must be tendered by law shall not use the division of lots to evade tendering.
Article 25: The tenderer shall specify the validity period of the bid in the tender documents. The bid validity period shall be calculated from the bid submission deadline.
Article 26: When the tenderer requires bidders to submit a bid bond in the tender documents, the bid bond shall not exceed 2% of the estimated price of the tender project. The validity period of the bid bond shall be consistent with the bid validity period.
For domestic bidding units of projects that must be tendered by law, bid bonds submitted in cash or check form shall be transferred from their basic accounts.
The tenderer shall not misappropriate the bid bond.
Article 27: The tenderer may decide whether to prepare a base price. There can only be one base price for a tender project. The base price must be kept confidential.
Intermediary agencies entrusted to prepare the base price shall not participate in bidding for the entrusted project, nor prepare bidding documents or provide consulting services for bidders of the project.
If the tenderer sets a maximum bid limit, it shall specify the maximum bid limit or the calculation method of the maximum bid limit in the tender documents. The tenderer shall not set a minimum bid limit.
Article 28: The tenderer shall not organize individual or partial potential bidders to inspect the project site.
Article 29: The tenderer may lawfully implement general contracting tendering for all or part of the project and related goods and services. Projects, goods, and services included in the general contracting scope in the form of provisional sums that fall within the scope of projects that must be tendered by law and meet the national scale standards shall be tendered according to law.
The provisional sum referred to in the preceding paragraph means the amount temporarily estimated by the tenderer in the tender documents for projects, goods, and services whose prices cannot be determined at the time of general contracting tendering.
Article 30: For projects that are technically complex or cannot precisely formulate technical specifications, the tenderer may conduct tendering in two stages.
In the first stage, bidders submit technical proposals without prices according to the requirements of the tender announcement or invitation to tender. The tenderer determines technical standards and requirements based on the submitted technical proposals and prepares the tender documents.
In the second stage, the tenderer provides tender documents to bidders who submitted technical proposals in the first stage. Bidders submit bidding documents including the final technical plan and bid price according to the tender documents.
If the tenderer requires bidders to submit a bid bond, it shall be requested in the second stage.
Article 31: If the tenderer terminates the tender, it shall promptly publish an announcement or notify invited or potential bidders who have obtained the prequalification or tender documents in writing. For those who have purchased prequalification or tender documents or submitted bid bonds, the tenderer shall promptly refund the fees for the prequalification or tender documents and the bid bonds received, along with the interest at the bank's current deposit rate.
Article 32: The tenderer shall not restrict or exclude potential bidders or bidders with unreasonable conditions.
If the tenderer has any of the following behaviors, it is considered to impose unreasonable conditions to restrict or exclude potential bidders or bidders:
(1) Providing different project information to potential bidders or bidders for the same tender project;
(2) Setting qualification, technical, or commercial conditions that are inconsistent with the specific characteristics and actual needs of the tender project or irrelevant to contract performance;
(3) For projects that must be tendered by law, using performance or awards in specific administrative regions or industries as bonus or winning conditions;
(4) Applying different qualification review or bid evaluation standards to potential bidders or bidders;
(5) Limiting or specifying particular patents, trademarks, brands, origins, or suppliers;
(6) Illegally restricting the ownership form or organizational form of potential bidders or bidders for projects that must be tendered by law;
(7) Using other unreasonable conditions to restrict or exclude potential bidders or bidders.
Chapter 3 Bidding
Article 33: Bidders participating in projects that must be tendered by law are not restricted by region or department, and no unit or individual shall illegally interfere.
Article 34: Legal persons, other organizations, or individuals who have interests that may affect the fairness of the tender shall not participate in bidding.
Different units with the same person in charge or with controlling or management relationships shall not participate in bidding for the same bid section or the same tender project without divided sections.
Bids violating the preceding two provisions shall be invalid.
Article 35: Bidders who withdraw submitted bid documents must notify the tenderer in writing before the bid deadline. If the tenderer has received the bid bond, it shall be refunded within 5 days from the date of receiving the bidder's written withdrawal notice.
If the bidder withdraws the bid documents after the bid deadline, the tenderer may not refund the bid bond.
Article 36: The tenderer shall refuse to accept bid documents submitted by applicants who fail the prequalification, or those delivered late or not sealed according to the tender documents' requirements.
The tenderer shall truthfully record the delivery time and sealing status of the bid documents and keep them on file for reference.
Article 37: The tenderer shall specify in the prequalification announcement, tender announcement, or invitation to bid whether consortium bids are accepted.
If the tenderer accepts consortium bids and conducts prequalification, the consortium shall be formed before submitting the prequalification application documents. If the consortium adds, reduces, or replaces members after prequalification, its bid shall be invalid.
If any party of the consortium bids individually or participates in other consortium bids in the same tender project under their own name, the related bids shall be invalid.
Article 38: Bidders who undergo major changes such as mergers, splits, or bankruptcy shall promptly notify the tenderer in writing. If the bidder no longer meets the qualification conditions specified in the prequalification documents or tender documents, or if their bid affects the fairness of the tender, the bid shall be invalid.
Article 39: Collusion among bidders is prohibited.
The following situations are considered collusion among bidders:
(1) Bidders negotiate substantive contents of bid documents such as bid prices;
(2) Bidders agree on the winning bidder;
(3) Bidders agree that some bidders will withdraw or forfeit bidding or winning;
(4) Bidders who are members of the same group, association, chamber of commerce, or other organizations coordinate bids according to the organization's requirements;
(5) Other joint actions taken by bidders to seek winning or exclude specific bidders.
Article 40: The following situations are deemed collusion among bidders:
(1) Bid documents of different bidders are prepared by the same unit or individual;
(2) Different bidders entrust the same unit or individual to handle bidding matters;
(3) Project management members listed in bid documents of different bidders are the same person;
(4) Bid documents of different bidders are abnormally consistent or bid prices show regular differences;
(5) Bid documents of different bidders are mixed together;
(6) Bid bonds of different bidders are transferred from the same unit or individual's account.
Article 41: Collusion between tenderers and bidders is prohibited.
The following situations are considered collusion between tenderers and bidders:
(1) The tenderer opens bid documents before the bid opening and leaks relevant information to other bidders;
(2) The tenderer directly or indirectly discloses the bid base price, bid evaluation committee members, and other information to bidders;
(3) The tenderer explicitly or implicitly instructs bidders to lower or raise bid prices;
(4) The tenderer instructs bidders to withdraw or modify bid documents;
(5) The tenderer explicitly or implicitly facilitates specific bidders to win the bid;
(6) Other collusive acts between tenderers and bidders to seek specific bidders to win.
Article 42: Using qualification or credential certificates obtained through transfer or lease to bid is considered bidding under another's name as stipulated in Article 33 of the Tendering and Bidding Law.
The following situations of bidders are considered fraudulent acts by other means as stipulated in Article 33 of the Tendering and Bidding Law:
(1) Using forged or altered licenses;
(2) Providing false financial status or performance;
(3) Providing false resumes or labor relationship proofs of project leaders or key technical personnel;
(4) Providing false credit status;
(5) Other fraudulent behaviors.
Article 43: Applicants submitting prequalification application documents shall comply with the provisions of the Tendering and Bidding Law and relevant regulations concerning bidders in these regulations.
Chapter 4: Bid Opening, Bid Evaluation, and Awarding
Article 44: The tenderer shall open bids at the time and place specified in the bidding documents.
If there are fewer than three bidders, the bids shall not be opened; the tenderer shall re-tender.
If a bidder has objections to the bid opening, they shall raise them at the bid opening site. The tenderer shall respond on the spot and make a record.
Article 45: The state implements unified standards and management methods for the professional classification of bid evaluation experts. Specific standards and methods shall be formulated by the development and reform department of the State Council in conjunction with relevant departments of the State Council.
Provincial people's governments and relevant departments of the State Council shall establish comprehensive bid evaluation expert databases.
Article 46: Except for special tender projects stipulated in the third paragraph of Article 37 of the Tendering and Bidding Law, for projects that must be tendered by law, the expert members of the bid evaluation committee shall be determined by random selection from the list of experts in the relevant professional fields in the bid evaluation expert database. No unit or individual shall designate or indirectly designate expert members of the bid evaluation committee in any explicit or implicit manner.
For projects that must be tendered by law, the tenderer shall not replace the legally determined members of the bid evaluation committee without reasons stipulated by the Tendering and Bidding Law and these regulations. Replacement of expert members of the bid evaluation committee shall be conducted in accordance with the preceding paragraph.
Members of the bid evaluation committee who have conflicts of interest with bidders shall voluntarily recuse themselves.
Relevant administrative supervision departments shall supervise the determination method of bid evaluation committee members, the selection of bid evaluation experts, and bid evaluation activities according to their prescribed duties. Staff of administrative supervision departments shall not serve as members of the bid evaluation committee for projects they supervise.
Article 47: The special tender projects referred to in the third paragraph of Article 37 of the Tendering and Bidding Law are projects that are technically complex, highly specialized, or have special national requirements, where experts determined by random selection cannot be guaranteed to be competent for bid evaluation.
Article 48: The tenderer shall provide the bid evaluation committee with the necessary information for bid evaluation but shall not explicitly or implicitly indicate preference for or exclusion of specific bidders.
The tenderer shall reasonably determine the bid evaluation time based on factors such as project scale and technical complexity. If more than one-third of the bid evaluation committee members believe the evaluation time is insufficient, the tenderer shall appropriately extend it.
During the bid evaluation process, if a bid evaluation committee member has grounds for recusal, leaves their post without authorization, or cannot continue due to health or other reasons, they shall be replaced in a timely manner. The evaluation conclusions made by the replaced member are invalid and shall be re-evaluated by the new member.
Article 49: Members of the bid evaluation committee shall, in accordance with the Tendering and Bidding Law and these regulations, objectively and fairly provide evaluation opinions on the bid documents according to the evaluation standards and methods specified in the bidding documents. Evaluation standards and methods not specified in the bidding documents shall not be used as the basis for evaluation.
Members of the bid evaluation committee shall not privately contact bidders, accept property or other benefits from bidders, solicit the tenderer's intention to determine the winning bidder, accept any explicit or implicit requests from any unit or individual to favor or exclude specific bidders, or engage in other behaviors that are not objective or fair in performing their duties.
Article 50: For tender projects with a reserve price, the tenderer shall announce it at the bid opening. The reserve price can only be used as a reference for bid evaluation and shall not be used as a condition for awarding the contract based on whether the bid price is close to the reserve price, nor shall bids exceeding the reserve price's fluctuation range be rejected.
Article 51: The bid evaluation committee shall reject bids under any of the following circumstances:
(1) The bid documents are not stamped by the bidding unit and signed by the unit's legal representative;
(2) The bidding consortium has not submitted a joint bidding agreement;
(3) The bidder does not meet the qualification conditions stipulated by the state or the bidding documents;
(4) The same bidder submits two or more different bid documents or bid prices, except when the bidding documents require submission of alternative bids;
(5) The bid price is lower than the cost or higher than the maximum bid price set in the bidding documents;
(6) The bid documents do not respond to the substantive requirements and conditions of the bidding documents;
(7) The bidder engages in collusive bidding, fraud, bribery, or other illegal activities.
Article 52: If the bid documents contain ambiguous content, obvious textual or calculation errors, and the bid evaluation committee deems it necessary for the bidder to provide clarifications or explanations, the bidder shall be notified in writing. The bidder's clarifications or explanations shall be in written form and shall not exceed the scope of the bid documents or change their substantive content.
The bid evaluation committee shall not imply or induce bidders to provide clarifications or explanations, nor accept clarifications or explanations voluntarily offered by bidders.
Article 53: After completing the bid evaluation, the bid evaluation committee shall submit a written evaluation report and a list of winning candidates to the tenderer. The number of winning candidates shall not exceed three and shall be ranked.
The evaluation report shall be signed by all members of the bid evaluation committee. Members who have different opinions on the evaluation results shall explain their dissent and reasons in writing, and the evaluation report shall note such dissent. Members who refuse to sign the evaluation report without providing written dissent shall be deemed to agree with the evaluation results.
Article 54: For projects that must be tendered by law, the tenderer shall publicly announce the winning candidates within three days of receiving the evaluation report, with a public announcement period of no less than three days.
Bidders or other interested parties who have objections to the evaluation results of projects that must be tendered by law shall raise them during the public announcement period of the winning candidates. The tenderer shall respond within three days of receiving the objection; before responding, the tendering and bidding activities shall be suspended.
Article 55: For projects where state-owned funds hold a controlling or leading position and bidding is legally required, the tenderer shall determine the candidate ranked first as the winning bidder. If the first-ranked candidate waives the bid, cannot perform the contract due to force majeure, fails to submit the performance bond as required by the bidding documents, or is found to have committed illegal acts affecting the bid result and thus does not meet the bid conditions, the tenderer may sequentially determine other candidates as the winning bidder according to the ranking proposed by the bid evaluation committee, or may re-tender.
Article 56: If the business or financial status of a winning candidate changes significantly or if there is illegal behavior that the tenderer believes may affect their ability to perform the contract, the original bid evaluation committee shall review and confirm this according to the standards and methods specified in the bidding documents before issuing the winning bid notice.
Article 57: The tenderer and the winning bidder shall sign a written contract in accordance with the Bidding Law and these regulations. The main terms of the contract, including the subject, price, quality, and performance period, shall be consistent with the contents of the bidding documents and the winning bidder's bid. The tenderer and the winning bidder shall not enter into any other agreements that deviate from the substantive content of the contract.
The tenderer shall return the bid bond and the bank interest at the same period to the winning bidder and the unsuccessful bidders no later than 5 days after the written contract is signed.
Article 58: If the bidding documents require the winning bidder to submit a performance bond, the winning bidder shall submit it as required. The performance bond shall not exceed 10% of the contract amount.
Article 59: The winning bidder shall perform its obligations according to the contract and complete the winning project. The winning bidder shall not transfer the winning project to others, nor split the project and transfer parts to others separately.
The winning bidder may subcontract part of the non-main and non-critical work of the winning project to others with the tenderer's consent or as agreed in the contract. The subcontractor must have the corresponding qualifications and shall not subcontract again.
The winning bidder shall be responsible to the tenderer for the subcontracted project, and the subcontractor shall bear joint liability for the subcontracted project.
Chapter 5: Complaints and Handling
Article 60: Bidders or other interested parties who believe that the bidding activities do not comply with laws or administrative regulations may file a complaint with the relevant administrative supervision department within 10 days from the date they know or should have known. Complaints must have clear requests and necessary supporting materials.
For complaints regarding the matters stipulated in Articles 22, 44, and 54 of these regulations, objections must first be raised with the tenderer. The period during which the objection is being answered shall not be counted within the time limit specified in the preceding paragraph.
Article 61: If a complainant files complaints on the same matter to two or more administrative supervision departments with authority to accept them, the department that received the complaint first shall be responsible for handling it.
The administrative supervision department shall decide whether to accept the complaint within 3 working days from receipt and shall make a written decision within 30 working days from acceptance; time required for inspection, testing, appraisal, or expert review shall not be included.
If the complainant fabricates facts, forges materials, or obtains proof materials by illegal means to file a complaint, the administrative supervision department shall reject it.
Article 62: The administrative supervision department handling complaints has the right to review and copy relevant documents and materials and investigate relevant situations. Relevant units and personnel shall cooperate. If necessary, the administrative supervision department may order the suspension of bidding activities.
Staff of the administrative supervision department shall keep confidential any state secrets or trade secrets learned during supervision and inspection in accordance with the law.
Chapter 6: Legal Liability
Article 63: If the tenderer engages in any of the following acts that restrict or exclude potential bidders, the relevant administrative supervision department shall impose penalties in accordance with Article 51 of the Bidding Law:
(1) Failing to publish the prequalification announcement or bidding announcement for projects that must be publicly tendered in the designated media as required;
(2) Publishing inconsistent content of the same project's prequalification announcement or bidding announcement in different media, affecting potential bidders' application for prequalification or bidding.
If the tenderer of a project that must be tendered by law fails to publish the prequalification announcement or bidding announcement as required, constituting evasion of bidding, penalties shall be imposed in accordance with Article 49 of the Bidding Law.
Article 64: If the tenderer has any of the following circumstances, the relevant administrative supervision department shall order correction and may impose a fine of up to 100,000 yuan:
(1) Using invitation bidding instead of public bidding when public bidding is required by law;
(2) The time limits for the sale, clarification, or modification of bidding documents or prequalification documents, or the deadlines for submitting prequalification application documents or bids do not comply with the Bidding Law and these regulations;
(3) Accepting bids from units or individuals who have not passed prequalification;
(4) Accepting bids that should be rejected.
For the behaviors listed in items (1), (3), and (4) of the preceding paragraph, the directly responsible supervisors and other directly responsible personnel of the unit shall be disciplined according to law.
Article 65: If a bidding agency bids in the projects it is entrusted to handle, acts as an agent for bidding, or provides consulting services to bidders of the project, or if an intermediary institution entrusted to prepare the base bid participates in bidding for the entrusted base bid project or prepares bidding documents or provides consulting services for bidders of the project, legal liability shall be pursued in accordance with Article 50 of the Bidding Law.
Article 66: If the tenderer collects bid bonds or performance bonds exceeding the proportion stipulated in these regulations or fails to return bid bonds and bank interest as required, the relevant administrative supervision department shall order correction and may impose a fine of up to 50,000 yuan; if losses are caused to others, compensation shall be borne according to law.
Article 67: If bidders collude with each other or with the tenderer to bid, or bribe the tenderer or members of the bid evaluation committee to win the bid, the bid shall be invalid; if a crime is constituted, criminal responsibility shall be pursued according to law; if not constituting a crime, penalties shall be imposed according to Article 53 of the Bidding Law. For bidders who fail to win the bid, the fine amount for the unit shall be calculated based on the contract amount of the bidding project according to the proportion stipulated in the Bidding Law.
If a bidder has any of the following behaviors, which are considered serious violations under Article 53 of the Bidding Law, the relevant administrative supervision department shall cancel their qualification to participate in projects that must be tendered by law for 1 to 2 years:
(1) Bribing to win the bid;
(2) Colluding in bidding more than twice within 3 years;
(3) Collusive bidding behavior that damages the legitimate interests of the tenderer, other bidders, or the state, collectives, and citizens, causing direct economic losses of 300,000 yuan or more;
(4) Other serious acts of collusive bidding.
If a bidder commits any of the illegal acts listed in the second paragraph of this article again within 3 years from the expiration of the penalty execution period stipulated in this article, or if the collusive bidding or bribery to obtain the bid is particularly serious, the business license shall be revoked by the industrial and commercial administrative authority.
If laws and administrative regulations have other provisions on the punishment of collusive bidding price behavior, those provisions shall prevail.
Article 68: If a bidder bids in the name of another person or uses other means of fraud to obtain the bid, the bid shall be invalid; if a crime is constituted, criminal responsibility shall be pursued according to law; if no crime is constituted, punishment shall be imposed in accordance with Article 54 of the Tendering and Bidding Law. For projects that must be tendered by law, if the bidder does not win the bid, the fine amount for the unit shall be calculated based on the contract amount of the tender project according to the proportion stipulated in the Tendering and Bidding Law.
If a bidder has any of the following behaviors, which are serious circumstances stipulated in Article 54 of the Tendering and Bidding Law, the relevant administrative supervision department shall cancel its qualification to participate in projects that must be tendered by law for 1 to 3 years:
(1) Forging or altering qualification certificates or other permits to fraudulently obtain the bid;
(2) Using another person's name to bid more than twice within 3 years;
(3) Fraudulently obtaining the bid causing direct economic losses of 300,000 yuan or more to the tenderer;
(4) Other serious acts of fraudulently obtaining the bid.
If a bidder commits any of the illegal acts listed in the second paragraph of this article again within 3 years from the expiration of the penalty execution period stipulated in this article, or if the fraud to obtain the bid is particularly serious, the business license shall be revoked by the industrial and commercial administrative authority.
Article 69: Those who transfer or lease qualification certificates to others for bidding shall be subject to administrative penalties in accordance with laws and administrative regulations; if a crime is constituted, criminal responsibility shall be pursued according to law.
Article 70: If the tenderer of a project that must be tendered by law does not form a bid evaluation committee as required, or if the determination or replacement of members of the bid evaluation committee violates the Tendering and Bidding Law and these regulations, the relevant administrative supervision department shall order correction, may impose a fine of up to 100,000 yuan, and impose disciplinary actions on the directly responsible supervisors and other directly responsible personnel; the evaluation conclusions made by illegally determined or replaced members of the bid evaluation committee shall be invalid, and re-evaluation shall be conducted according to law.
If state staff illegally interfere in any way in the selection of members of the bid evaluation committee, legal responsibility shall be pursued in accordance with Article 81 of these regulations.
Article 71: If a member of the bid evaluation committee has any of the following behaviors, the relevant administrative supervision department shall order correction; if the circumstances are serious, prohibit them from participating in the evaluation of projects that must be tendered by law for a certain period; if the circumstances are particularly serious, cancel their qualification as a member of the bid evaluation committee:
(1) Failing to recuse when required;
(2) Leaving post without permission;
(3) Not evaluating according to the evaluation standards and methods specified in the tender documents;
(4) Privately contacting bidders;
(5) Soliciting the tenderer's intention to determine the winning bidder or accepting any explicit or implicit requests from any unit or individual to favor or exclude specific bidders;
(6) Failing to raise objections to bids that should be rejected according to law;
(7) Suggesting or inducing bidders to make clarifications or explanations, or accepting clarifications or explanations voluntarily made by bidders;
(8) Other behaviors that are not objective or fair in performing duties.
Article 72: If a member of the bid evaluation committee accepts property or other benefits from bidders, the received property shall be confiscated, a fine of not less than 3,000 yuan and not more than 50,000 yuan shall be imposed, the qualification as a member of the bid evaluation committee shall be canceled, and they shall not participate in the evaluation of projects that must be tendered by law again; if a crime is constituted, criminal responsibility shall be pursued according to law.
Article 73: If the tenderer of a project that must be tendered by law has any of the following situations, the relevant administrative supervision department shall order correction, may impose a fine of up to 1‰ of the winning project amount; if losses are caused to others, compensation shall be made according to law; disciplinary actions shall be imposed on the directly responsible supervisors and other directly responsible personnel:
(1) Failing to issue the winning bid notice without justifiable reasons;
(2) Failing to determine the winning bidder according to regulations;
(3) Changing the winning result without justifiable reasons after issuing the winning bid notice;
(4) Failing to sign a contract with the winning bidder without justifiable reasons;
(5) Imposing additional conditions on the winning bidder when signing the contract.
Article 74: If the winning bidder fails to sign a contract with the tenderer without justifiable reasons, imposes additional conditions on the tenderer when signing the contract, or fails to submit the performance bond as required by the tender documents, the winning qualification shall be canceled and the bid bond shall not be refunded. For projects that must be tendered by law, the relevant administrative supervision department shall order correction and may impose a fine of up to 1‰ of the winning project amount.
Article 75: If the tenderer and the winning bidder do not sign the contract according to the tender documents and the winning bidder's bid documents, or if the main terms of the contract are inconsistent with the content of the tender documents and the winning bidder's bid documents, or if the tenderer and the winning bidder sign an agreement that deviates from the substantive content of the contract, the relevant administrative supervision department shall order correction and may impose a fine of not less than 0.5‰ and not more than 1‰ of the winning project amount.
Article 76: If the winning bidder transfers the winning project to others, dismembers the winning project and transfers parts to others, violates the Tendering and Bidding Law and these regulations by subcontracting part of the main or key work of the winning project to others, or if the subcontractor further subcontracts, the transfer or subcontract shall be invalid, and a fine of not less than 0.5‰ and not more than 1‰ of the transferred or subcontracted project amount shall be imposed; illegal gains shall be confiscated; business suspension and rectification may be ordered; if the circumstances are serious, the business license shall be revoked by the industrial and commercial administrative authority.
Article 77: If a bidder or other interested party fabricates facts, forges materials, or obtains certification materials by illegal means to file complaints, causing losses to others, compensation shall be made according to law.
If the tenderer does not respond to objections as required and continues the tendering and bidding activities, the relevant administrative supervision department shall order correction. If correction is refused or cannot be made and it affects the bidding results, it shall be handled in accordance with the provisions of Article 82 of these regulations.
Article 78: Professional personnel who have obtained tendering professional qualifications and violate national regulations in handling tendering business shall be ordered to make corrections and given a warning; if the circumstances are serious, they shall be suspended from engaging in tendering business for a certain period; if the circumstances are particularly serious, their tendering professional qualifications shall be revoked.
Article 79: The state establishes a credit system for tendering and bidding. Relevant administrative supervision departments shall announce administrative decisions on illegal acts of parties such as tenderers, tendering agencies, bidders, and members of the bid evaluation committee in accordance with the law.
Article 80: If the project approval and verification departments do not approve or verify the scope of project tendering, tendering methods, or tendering organization forms according to law, the directly responsible supervisors and other directly responsible personnel of the unit shall be punished according to law.
If relevant administrative supervision departments fail to perform their duties according to law, do not investigate and deal with violations of the Tendering and Bidding Law and these regulations according to law, or do not handle complaints or announce administrative decisions on illegal acts of tendering and bidding parties according to regulations, the directly responsible supervisors and other directly responsible personnel shall be punished according to law.
If staff of project approval, verification departments, and relevant administrative supervision departments engage in favoritism, abuse of power, or neglect of duty, and constitute a crime, they shall be held criminally responsible according to law.
Article 81: State staff who use their positions to illegally interfere with tendering and bidding activities directly or indirectly, explicitly or implicitly, in any manner, and have any of the following circumstances, shall be given demerit or major demerit punishments according to law; if the circumstances are serious, they shall be demoted or dismissed according to law; if the circumstances are particularly serious, they shall be expelled according to law; if a crime is constituted, criminal responsibility shall be pursued according to law:
(1) Requiring projects that must be tendered by law not to be tendered, or requiring projects that should be publicly tendered by law not to be publicly tendered;
(2) Requiring members of the bid evaluation committee or the tenderer to designate certain bidders as winning candidates or winners, or illegally interfering with bid evaluation activities in other ways, affecting the bidding results;
(3) Illegally interfering with tendering and bidding activities in other ways.
Article 82: If the tendering and bidding activities of projects that must be tendered by law violate the Tendering and Bidding Law and these regulations, causing substantial impact on the bidding results and cannot be remedied, the tendering, bidding, and winning shall be invalid, and re-tendering or re-evaluation shall be conducted according to law.
Chapter 7: Supplementary Provisions
Article 83: Tendering and Bidding Associations shall carry out activities according to legally formulated charters, strengthening industry self-discipline and services.
Article 84: If laws and administrative regulations on government procurement have other provisions on tendering and bidding for government procurement of goods and services, those provisions shall prevail.
Article 85: These regulations shall come into effect on February 1, 2012.
