Law of the People's Republic of China on Tendering and Bidding

Law of the People's Republic of China on Tendering and Bidding

(Adopted at the 11th meeting of the Standing Committee of the Ninth National People's Congress on August 30, 1999 and amended in accordance with the Decision on Amending the Tendering and Bidding Law of the People's Republic of China and the Metrology Law of the People's Republic of China adopted at the 31st Meeting of the Standing Committee of the 12th National People's Congress on December 27, 2017)

Catalogue

Chapter 1 General Provisions

Chapter 2 Tendering

Chapter 3 Bidding

Chapter 4 Bid Opening, Evaluation, and Winning

Chapter 5 Legal Liability

Chapter 6 Supplementary Provisions

Chapter 1 General Provisions

Article 1 In order to standardize bidding and tendering activities, protect national interests, social public interests, and the legitimate rights and interests of parties involved in bidding and tendering activities, improve economic efficiency, and ensure project quality, this Law is formulated.

Article 2 This Law shall apply to bidding and tendering activities conducted within the territory of the People's Republic of China.

Article 3 Bidding must be conducted for the following engineering construction projects within the territory of the People's Republic of China, including survey, design, construction, supervision, and procurement of important equipment, materials, etc. related to engineering construction:

（1） Projects related to social public interests and public safety, such as large-scale infrastructure and public utilities;

（2） Projects that fully or partially utilize state-owned funds for investment or state financing;

（3） Projects that utilize loans or aid funds from international organizations or foreign governments.

The specific scope and scale standards of the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with relevant departments of the State Council and submitted to the State Council for approval.

If there are regulations on the scope of other projects that must be tendered by law or the State Council, they shall be followed.

Article 4 No unit or individual shall break down projects that must be tendered according to law into smaller parts or avoid tendering in any other way.

Article 5 Tendering and bidding activities shall follow the principles of openness, fairness, impartiality, and good faith.

Article 6 For projects that must be tendered in accordance with the law, their tendering and bidding activities are not restricted by regions or departments. No unit or individual shall illegally restrict or exclude legal persons or other organizations outside the local area or system from participating in bidding, and shall not illegally interfere with bidding activities in any way.

Article 7 Tendering and bidding activities and their parties shall accept supervision implemented in accordance with the law.

The relevant administrative supervision departments shall supervise the bidding and tendering activities in accordance with the law, and investigate and punish illegal activities in the bidding and tendering activities in accordance with the law.

The administrative supervision of bidding activities and the specific division of powers of relevant departments shall be stipulated by the State Council.

Chapter 2 Tendering

Article 8 The tenderer is a legal person or other organization that proposes a bidding project or conducts bidding in accordance with the provisions of this Law.

Article 9 If a bidding project needs to go through project approval procedures in accordance with relevant national regulations, it shall first go through the approval procedures and obtain approval.

The tenderer shall have the corresponding funds or funding sources for the bidding project that have been confirmed, and shall truthfully state them in the bidding documents.

Article 10 Tendering is divided into open tendering and invited tendering.

Public bidding refers to the process where the tenderer invites unspecified legal entities or other organizations to bid through a bidding announcement.

Invitation to bid refers to the process in which the tenderer invites specific legal entities or other organizations to bid through an invitation to bid document.

Article 11 If national key projects determined by the development planning department of the State Council and local key projects determined by the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are not suitable for public bidding, they may be invited for bidding with the approval of the development planning department of the State Council or the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government.

Article 12 The tenderer has the right to choose a bidding agency on its own and entrust it to handle the bidding matters. No unit or individual shall designate a bidding agency for the tenderer in any way.

If the tenderer has the ability to prepare bidding documents and organize evaluation, they may handle the bidding matters on their own. No unit or individual shall compel them to entrust a bidding agency to handle bidding matters.

For projects that must be tendered according to law, if the tenderer handles the tendering matters on their own, they shall file a record with the relevant administrative supervision department.

Article 13 A bidding agency is a social intermediary organization established in accordance with the law, engaged in bidding agency business, and providing relevant services.

The bidding agency shall meet the following conditions:

（1） Having business premises and corresponding funds engaged in bidding agency business;

（2） There are corresponding professional forces capable of preparing bidding documents and organizing bid evaluations.

Article 14 The bidding agency shall not have any subordinate or other interest relationship with administrative or other state organs.

Article 15 The bidding agency shall handle the bidding matters within the scope entrusted by the tenderer and comply with the provisions of this Law regarding the tenderer.

Article 16 If the tenderer adopts the public bidding method, they shall issue a bidding announcement. The bidding announcement for projects that must be tendered according to law shall be published through nationally designated newspapers, information networks, or other media.

The bidding announcement shall specify the name and address of the tenderer, the nature, quantity, implementation location and time of the bidding project, and the method of obtaining the bidding documents.

Article 17 If the tenderer adopts the invitation to bid method, it shall issue a bid invitation letter to three or more specific legal persons or other organizations with the ability to undertake the bidding project and good credit.

The invitation to bid shall specify the matters stipulated in Article 16, Paragraph 2 of this Law.

Article 18 The tenderer may, according to the requirements of the tender project itself, require potential bidders to provide relevant qualification certificates and performance information in the tender announcement or invitation for bids, and conduct qualification review on potential bidders; If the state has regulations on the qualifications of bidders, they shall be followed.

The tenderer shall not restrict or exclude potential bidders with unreasonable conditions, and shall not discriminate against potential bidders.

Article 19 The tenderer shall prepare the tender documents based on the characteristics and needs of the tender project. The bidding documents shall include all substantive requirements and conditions such as the technical requirements of the bidding project, the standards for the qualification review of bidders, the bidding price requirements and evaluation criteria, as well as the main terms of the proposed contract.

If the state has regulations on the technology and standards of bidding projects, the tenderer shall put forward corresponding requirements in the bidding documents in accordance with their regulations.

If a bidding project requires the division of sections and determination of the construction period, the tenderer shall reasonably divide the sections and determine the construction period, and specify them in the bidding documents.

Article 20 The bidding documents shall not require or indicate specific production suppliers or any other content that favors or excludes potential bidders.

Article 21 The tenderer may organize potential bidders to visit the project site based on the specific circumstances of the bidding project.

Article 22 The tenderer shall not disclose to others the names and quantities of potential bidders who have obtained the tender documents, as well as other information related to tender and bidding that may affect fair competition.

If the tenderer has a base price, the base price must be kept confidential.

Article 23 If the tenderer makes necessary clarifications or modifications to the tender documents that have already been issued, it shall notify all recipients of the tender documents in writing at least fifteen days before the deadline for submitting bid documents as required by the tender documents. The content to be clarified or modified is an integral part of the bidding documents.

Article 24 The tenderer shall determine the reasonable time required for bidders to prepare their bid documents; However, for projects that must be tendered according to law, the shortest period from the date of issuance of the tender documents to the deadline for bidders to submit their bids shall not be less than 20 days.

Chapter 3 Bidding

Article 25 Bidders are legal persons or other organizations that respond to bidding and participate in bidding competition.

If individuals are allowed to participate in bidding for scientific research projects that are tendered in accordance with the law, the provisions of this law regarding bidders shall apply to the individuals bidding.

Article 26 Bidders shall have the ability to undertake the bidding project; If the relevant national regulations stipulate the qualification conditions for bidders or the bidding documents specify the qualification conditions for bidders, bidders shall meet the prescribed qualification conditions.

Article 27 Bidders shall prepare their bidding documents in accordance with the requirements of the bidding documents. The bidding documents should respond to the substantive requirements and conditions proposed in the bidding documents.

If the bidding project belongs to construction, the content of the bidding documents should include the resumes, achievements, and mechanical equipment intended to be used to complete the bidding project of the proposed project leader and main technical personnel.

Article 28 Bidders shall deliver their bid documents to the place of bidding before the deadline for submitting bid documents as required by the bidding documents. After receiving the bidding documents, the tenderer shall sign and save them, and shall not open them. If there are less than three bidders, the tenderer shall conduct a new tender in accordance with this Law.

The tenderer shall reject the bidding documents delivered after the deadline for submission of bidding documents as required by the bidding documents.

Article 29 Bidders may supplement, modify, or withdraw their submitted bidding documents before the deadline specified in the bidding documents, and shall notify the tenderer in writing. The supplementary and modified content is an integral part of the bidding documents.

Article 30 If a bidder intends to subcontract some non essential and non critical work of the winning project after winning the bid based on the actual situation of the project stated in the bidding documents, it shall be stated in the bidding documents.

Article 31 Two or more legal persons or other organizations may form a consortium to jointly bid as one bidder.

All parties of the consortium shall have the corresponding ability to undertake the bidding project; If the relevant national regulations or bidding documents have provisions on the qualifications of bidders, all parties to the consortium shall meet the corresponding qualifications as stipulated. A consortium composed of units in the same profession shall determine their qualification level based on the unit with a lower qualification level.

The parties of the consortium shall sign a joint bidding agreement, clearly specifying the work and responsibilities that each party intends to undertake, and submit the joint bidding agreement together with the bidding documents to the tenderer. If the consortium wins the bid, all parties of the consortium shall jointly sign a contract with the tenderer and assume joint and several liability to the tenderer for the winning project.

The tenderer shall not force bidders to form a consortium to jointly bid, nor shall it restrict competition among bidders.

Article 32 Bidders shall not collude with each other in bidding prices, exclude other bidders from fair competition, or harm the legitimate rights and interests of the tenderer or other bidders.

Bidders shall not collude with the tenderer to bid, which may harm national interests, public interests, or the legitimate rights and interests of others.

Bidders are prohibited from obtaining the bid by bribing the tenderer or members of the evaluation committee.

Article 33 Bidders shall not bid with prices lower than cost, nor shall they bid in the name of others or engage in other forms of fraud to win the bid.

Chapter 4 Bid Opening, Evaluation, and Winning

Article 34 The bid opening shall be conducted publicly at the same time as the deadline for submission of bid documents determined in the bidding documents; The place of bid opening shall be the location predetermined in the bidding documents.

Article 35 The bid opening shall be presided over by the tenderer, and all bidders shall be invited to participate.

Article 36 At the time of bid opening, the sealing of the bidding documents shall be inspected by the bidders or their elected representatives, and may also be inspected and notarized by a notary institution commissioned by the tenderer; After confirming the accuracy, the staff will publicly open the package and read out the name of the bidder, the bid price, and other main contents of the bid documents.

All bidding documents received by the tenderer before the deadline for submitting bidding documents as required by the bidding documents shall be opened and read out in public during the bid opening.

The bidding process should be recorded and archived for future reference.

Article 37 The evaluation of bids shall be the responsibility of the evaluation committee established by the tenderer in accordance with the law.

For projects that must be tendered according to law, the evaluation committee shall be composed of representatives of the tenderer and experts in relevant technical, economic, and other fields. The number of members shall be an odd number of five or more, and the number of experts in technical, economic, and other fields shall not be less than two-thirds of the total number of members.

The expert referred to in the preceding paragraph shall have worked in the relevant field for at least eight years and hold a senior professional title or equivalent professional level, and shall be determined by the tenderer from the list of experts provided by the relevant departments of the State Council or the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government, or from the list of experts in the relevant profession in the expert database of the bidding agency; General bidding projects can be randomly selected, while special bidding projects can be directly determined by the tenderer.

Individuals with vested interests in the bidder are not allowed to enter the evaluation committee of the relevant project; Those that have already entered should be replaced.

The list of members of the bid evaluation committee shall be kept confidential until the winning bid result is determined.

Article 38 The tenderer shall take necessary measures to ensure that the evaluation is conducted in strict confidentiality.

No unit or individual shall illegally interfere with or influence the process and results of bid evaluation.

Article 39 The bid evaluation committee may require bidders to make necessary clarifications or explanations regarding unclear content in the bidding documents, but the clarifications or explanations shall not exceed the scope of the bidding documents or change the substantive content of the bidding documents.

Article 40 The evaluation committee shall evaluate and compare the bidding documents in accordance with the evaluation criteria and methods determined in the bidding documents; If there is a base price, reference should be made to the base price. After the evaluation committee completes the evaluation, it shall submit a written evaluation report to the tenderer and recommend qualified candidates for winning the bid.

The tenderer shall determine the winning bidder based on the written evaluation report submitted by the evaluation committee and the recommended candidates for winning the bid. The tenderer may also authorize the evaluation committee to directly determine the winning bidder.

If the State Council has special regulations on the evaluation of specific bidding projects, follow those regulations.

Article 41 The winning bidder's bid shall meet one of the following conditions:

（1） Capable of meeting the comprehensive evaluation criteria specified in the bidding documents to the maximum extent possible;

（2） Capable of meeting the substantive requirements of the bidding documents and obtaining the lowest evaluated bid price; Except for those whose bidding price is lower than the cost.

Article 42 If the evaluation committee deems that all bids do not meet the requirements of the bidding documents after evaluation, it may reject all bids.

If all bids for projects that must be tendered according to law are rejected, the tenderer shall re tender in accordance with this Law.

Article 43 Before determining the winning bidder, the tenderer shall not negotiate with bidders on substantive content such as bid prices and bid proposals.

Article 44 Members of the evaluation committee shall objectively and fairly perform their duties, abide by professional ethics, and bear personal responsibility for the evaluation opinions put forward.

Members of the evaluation committee shall not have private contact with bidders, and shall not accept any property or other benefits from bidders.

Members of the evaluation committee and relevant personnel involved in the evaluation shall not disclose the evaluation and comparison of the bidding documents, the recommendation of the winning bidder candidates, or other information related to the evaluation.

Article 45 After the winning bidder is determined, the tenderer shall issue a notice of award to the winning bidder and notify all unsuccessful bidders of the winning bid results at the same time.

The winning bid notification has legal effect on both the tenderer and the winning bidder. If the tenderer changes the winning bid result or the winning bidder abandons the winning project after the notification of award is issued, they shall bear legal responsibility in accordance with the law.

Article 46 The tenderer and the winning bidder shall enter into a written contract in accordance with the tender documents and the bidding documents of the winning bidder within 30 days from the date of issuance of the winning bid notification. The tenderer and the winning bidder shall not enter into any other agreement that deviates from the substantive content of the contract.

If the bidding documents require the winning bidder to submit a performance bond, the winning bidder shall submit it.

Article 47 For projects that must be tendered according to law, the tenderer shall submit a written report on the bidding and tendering situation to the relevant administrative supervision department within 15 days from the date of determining the winning bidder.

Article 48 The winning bidder shall fulfill its obligations in accordance with the contract and complete the winning project. The winning bidder shall not transfer the winning project to others, nor shall they divide the winning project and transfer it separately to others.

The winning bidder may subcontract some non essential and non critical work of the winning project to others for completion in accordance with the contract or with the consent of the tenderer. The person accepting subcontracting shall have the corresponding qualifications and shall not subcontract again.

The winning bidder shall be responsible to the tenderer for the subcontracted project, and the person accepting the subcontract shall bear joint and several liability for the subcontracted project.

Chapter 5 Legal Liability

Article 49 If a project that must be tendered is not tendered in violation of the provisions of this Law, or if the project that must be tendered is broken down into smaller parts or any other way is used to avoid tendering, it shall be ordered to make corrections within a time limit and may be fined not less than 0.5% but not more than 0.1% of the project contract amount; For projects that use all or part of state-owned funds, project execution or fund disbursement may be suspended; Punish the directly responsible supervisors and other directly responsible personnel of the unit in accordance with the law.

Article 50 If a bidding agency violates the provisions of this Law by disclosing confidential information and materials related to bidding activities, or colluding with the tenderer or bidder to harm national interests, public interests, or the legitimate rights and interests of others, it shall be fined not less than 50000 yuan but not more than 250000 yuan; Impose a fine of no less than 5% and no more than 10% on the directly responsible supervisors and other directly responsible personnel of the unit; If there are illegal gains, they shall be confiscated; If the circumstances are serious, it is prohibited to act as an agent for projects that must be tendered according to law for one to two years and shall be announced, until the business license is revoked by the administrative department for industry and commerce; Those who commit crimes shall be held criminally responsible in accordance with the law. Those who cause losses to others shall be liable for compensation in accordance with the law.

If the behaviors listed in the preceding paragraph affect the winning bid result, the winning bid shall be invalid.

Article 51 If the tenderer restricts or excludes potential bidders with unreasonable conditions, discriminates against potential bidders, forces bidders to form a consortium to jointly bid, or restricts competition among bidders, it shall be ordered to make corrections and may be fined not less than 10000 yuan but not more than 50000 yuan.

Article 52 If the tenderer of a project that must be tendered according to law discloses to others the names and quantities of potential bidders who have obtained the tender documents or other information related to tender and bidding that may affect fair competition, or leaks the base price, a warning shall be given and a fine of not less than 10000 yuan but not more than 100000 yuan may be imposed; Punish the directly responsible supervisors and other directly responsible personnel of the unit in accordance with the law; Those who commit crimes shall be held criminally responsible in accordance with the law.

If the behaviors listed in the preceding paragraph affect the winning bid result, the winning bid shall be invalid.

Article 53 If bidders collude with each other or with the tenderer to bid, or if bidders attempt to win the bid by bribing the tenderer or members of the evaluation committee, the winning bid shall be invalid and a fine of not less than 0.5% but not more than 0.1% of the winning project amount shall be imposed. The directly responsible person in charge and other directly responsible personnel of the unit shall be fined not less than 5% but not more than 10% of the unit's fine amount; If there are illegal gains, they shall be confiscated; For those with serious circumstances, their bidding qualifications for projects that must be tendered according to law within one to two years shall be cancelled and announced, until their business license is revoked by the administrative department for industry and commerce; Those who commit crimes shall be held criminally responsible in accordance with the law. Those who cause losses to others shall be liable for compensation in accordance with the law.

Article 54 If a bidder submits a bid in the name of another person or engages in other fraudulent activities to obtain the winning bid, the winning bid shall be invalid, and if it causes losses to the tenderer, the bidder shall bear compensation liability in accordance with the law; Those who commit crimes shall be held criminally responsible in accordance with the law.

If the bidder of a project that must be tendered according to law commits the acts listed in the preceding paragraph but does not constitute a crime, a fine of not less than 0.5% and not more than 0.1% of the winning project amount shall be imposed, and the directly responsible person in charge and other directly responsible personnel of the unit shall be fined not less than 5% and not more than 10% of the unit's fine amount; If there are illegal gains, they shall be confiscated; For those with serious circumstances, their bidding qualifications for projects that must be tendered according to law within one to three years shall be cancelled and announced, until their business license is revoked by the administrative department for industry and commerce.

Article 55 For projects that must be tendered according to law, if the tenderer violates the provisions of this Law by negotiating with bidders on substantive content such as bidding prices and bidding plans, a warning shall be given, and the directly responsible personnel in charge and other directly responsible personnel of the unit shall be punished according to law.

If the behaviors listed in the preceding paragraph affect the winning bid result, the winning bid shall be invalid.

Article 56 If a member of the evaluation committee accepts money or other benefits from a bidder, or if a member of the evaluation committee or relevant personnel participating in the evaluation disclose to others the evaluation and comparison of the bidding documents, the recommendation of the winning candidate, and other information related to the evaluation, a warning shall be given, the received money shall be confiscated, and a fine of not less than 3000 yuan but not more than 50000 yuan may be imposed. Members of the evaluation committee who have committed the listed illegal acts shall have their qualifications as members of the evaluation committee revoked and shall not participate in the evaluation of any projects that must be tendered according to law; Those who commit crimes shall be held criminally responsible in accordance with the law.

Article 57 If the tenderer determines the winning bidder in addition to the winning candidates recommended by the evaluation committee in accordance with the law, and for projects that must be tendered in accordance with the law, if the winning bidder is determined by themselves after all bids have been rejected by the evaluation committee, the winning bid shall be invalid, and rectification shall be ordered. A fine of not less than 0.5% but not more than 0.1% of the winning project amount may be imposed; Punish the directly responsible supervisors and other directly responsible personnel of the unit in accordance with the law.

Article 58 If the winning bidder transfers the winning project to others, divides the winning project into parts and transfers them separately to others, subcontracts part of the main body and key work of the winning project to others in violation of the provisions of this Law, or subcontracts again, the transfer or subcontracting shall be invalid and a fine of not less than 0.5% but not more than 0.1% of the amount of the transferred or subcontracted project shall be imposed; If there are illegal gains, they shall be confiscated; May be ordered to suspend business for rectification; If the circumstances are serious, the business license shall be revoked by the administrative department for industry and commerce.

Article 59 If the tenderer and the winning bidder fail to enter into a contract in accordance with the tender documents and the winning bidder's bidding documents, or if the tenderer and the winning bidder enter into an agreement that deviates from the substantive content of the contract, they shall be ordered to make corrections; A fine of no less than 0.5% and no more than 0.1% of the winning project amount can be imposed.

Article 60 If the winning bidder fails to perform the contract with the tenderer, the performance bond shall not be refunded. If the losses caused to the tenderer exceed the amount of the performance bond, compensation shall also be made for the excess; If the performance bond is not submitted, the bidder shall be liable for compensation for the losses incurred.

If the winning bidder fails to fulfill its obligations in accordance with the contract signed with the tenderer and the circumstances are serious, its bidding qualification for projects that must be tendered according to law within two to five years shall be cancelled and announced, and its business license shall be revoked by the administrative authority for industry and commerce.

If the contract cannot be fulfilled due to force majeure, the provisions of the first two paragraphs shall not apply.

Article 61 The administrative penalties stipulated in this chapter shall be decided by the relevant administrative supervision departments designated by the State Council. Except for the agencies that have already made provisions for implementing administrative penalties in this law.

Article 62 If any unit violates the provisions of this Law by restricting or excluding legal persons or other organizations outside the local area or system from participating in bidding, designating a bidding agency for the tenderer, forcing the tenderer to entrust a bidding agency to handle bidding matters, or interfering with bidding activities in other ways, it shall be ordered to make corrections; The directly responsible supervisors and other directly responsible personnel of the unit shall be given disciplinary actions such as warning, demerit, or major demerit in accordance with the law. If the circumstances are serious, they shall be given disciplinary actions such as demotion, dismissal, or expulsion in accordance with the law.

Individuals who use their power to engage in the illegal acts mentioned in the preceding paragraph shall be held accountable in accordance with the provisions of the preceding paragraph.

Article 63 If state officials who are responsible for administrative supervision of bidding and tendering activities engage in favoritism, abuse of power, or neglect their duties, which constitutes a crime, they shall be held criminally responsible in accordance with the law; If it does not constitute a crime, administrative sanctions shall be imposed in accordance with the law.

Article 64 If a project that must be tendered according to law violates the provisions of this Law and the winning bid is invalid, the winning bidder shall be re determined from the remaining bidders in accordance with the winning conditions stipulated in this Law or a new tender shall be conducted in accordance with this Law.

Chapter 6 Supplementary Provisions

Article 65 Bidders and other interested parties who believe that bidding activities do not comply with relevant provisions of this Law have the right to raise objections to the tenderer or file complaints with relevant administrative supervision departments in accordance with the law.

Article 66 Projects involving national security, state secrets, disaster relief, or special circumstances such as using poverty alleviation funds to implement work for relief or requiring the use of migrant workers that are not suitable for bidding may not be subject to bidding in accordance with relevant national regulations.

Article 67 For projects that use loans or aid funds from international organizations or foreign governments for bidding, if the lender or fund provider has different regulations on the specific conditions and procedures for bidding, their regulations may apply, except for those that violate the social and public interests of the People's Republic of China.

Article 68 This Law shall come into effect on January 1, 2000.