Laws of the People's Republic of China

The Ministry of Construction

Circular on Distributing the Interim Measures for Bid-Inviting and Bidding Management of Preliminary Realty Management of the Ministry of Construction

JianZhuFang [2003] No.130

The construction departments of the provinces and autonomous regions, the bureaus of the real estate administration of the municipalities directly under the Central Government, and the Construction Bureau of Xinjiang Production and Construction Regime:

In order to regulate the bid-inviting and bidding activities of the realty management, to safeguard the legitimate rights and interests of the bid-inviting and bidding parties, and to promote the fair competition of the realty management market, the Interim Measures for Bid-Inviting and Bidding Management of Preliminary Realty Management are hereby formulated and distributed to you, which are required for implementation. Please inform the House and Real Estate Department of our Ministry of any circumstances during the implementation.

The Ministry of Construction of PRC

June 26, 2003

Interim Measures for Bid-Inviting and Bidding Management of Preliminary Realty Management

Chapter I General Provisions

Article 1

The Measures are formulated in order to regulate the bid-inviting and bidding activities of the realty management, to safeguard the legitimate rights and interests of the bid-inviting and bidding parties, and to promote the fair competition of the realty management market.

Article 2

The preliminary realty management herein shall refer to the realty management implemented by the realty management enterprise engaged by the construction entity before the owners or the owners¡¯ commission select a realty management enterprise at its own discretion.

The Measures shall apply when the construction entity selects the realty management enterprises with the corresponding qualification and when the administrative departments supervise and manage the bid-invitation and bidding activities of the realty management through bid-invitation and bidding.

Article 3

A construction entity of any residential and the non-residential realty in a same realty management area shall select the realty management enterprise with the corresponding qualification through bid-invitation and bidding; and where there are no more than 3 bidders or the residence scale is relatively small, the construction entity may select the realty management enterprise with the corresponding qualifications through agreement upon approval by the administrative department of real estate of the people¡¯s government of the district or county of the place where the realty is located.

The state promotes that the construction entities of other realty engage the realty management enterprises with the corresponding qualification via bid invitation and bidding.

Article 4

The bid-invitation and bidding activities of preliminary realty management shall stick to the principle of openness, fairness, justice and good faith.

Article 5

The administrative department of construction under the State Council shall be in charge of the supervision and administration of the bid-inviting and bidding activities of the realty management activities all over the country.

The administrative departments of construction of the local people¡¯s governments of the provinces and autonomous regions shall be in charge of the supervision and administration on the bid-inviting and bidding activities of the realty management activities within their respective administrative divisions.

The administrative departments of real estate of the local people¡¯s governments of the municipalities directly under the Central Government, prefectures and counties shall be in charge of the supervision and administration on the bid-inviting and bidding activities of the realty management activities in their respective administrative divisions.

Article 6

Any entity and individual shall not violate the provisions of laws and administrative regulations, restrict or exclude the eligible realty management enterprise from participating in the bidding or illegally intervene the bid-inviting and bidding activities of realty management in any way.

Chapter II Bid Invitation

Article 7

The bid inviter herein refers to the realty construction entity that carries out the bid-inviting of preliminary realty management according to law.

The bid-invitation of preliminary realty management shall be organized and implemented by the bid inviter. The bid inviter shall not restrict or exclude the potential bidders with imposition of irrational conditions, carry out discriminative treatment to the potential bidders or put forward the requirements of excessive high qualifications inconsistent with the actual requirements for the bid invitation of the realty management project to the potential bidders.

Article 8

The bid invitation of preliminary realty management includes open bidding and invited bidding.

In case of open bidding, the bid inviter shall promulgate the bid-inviting announcement on public medium, and at the same time promulgate free bid-inviting announcement on the China Information Website of Housing and Real Estates and the site of China Association of Realty Management.

The bid-inviting announcement shall clearly state the name and address of the bid inviter, the basic circumstances of the bid-inviting project and the method for obtaining the bid-inviting documents, etc.

In case of invited bidding, the bid inviter shall issue bidding invitations to no less than 3 realty management enterprises, which should include the same items as stipulated by the preceding paragraph.

Article 9

The bid inviter may entrust the bid-inviting agency to handle with the bid invitation, and if competent, the bid inviter may also organize and implement the bid-inviting activities by itself.

The bid-inviting agency of realty management shall handle with the bid invitation in the authorized scope of the bid inviter and abide by the relevant provisions of the Measures on the bid inviter.

Article 10

The bid inviter shall complete the preparation of the bid-inviting documents prior to the bid invitation according to the features and requirements of the realty management project

The bid-inviting documents shall include the following content:

(I)

brief introduction of the bid inviter and the bid-inviting project, including name, address, contact information of the bid inviter, the basic circumstance of the project, and the housing and the relevant facilities for realty management use, etc;

(II)

content and requirement of the realty management service, including service content, service standards, etc;

(III)

requirements for the bidder and bidding documents, including the qualification of the bidder, the format and the main content of the bidding documents, etc;

(IV)

standard and method for bidding evaluation;

(V)

bid-inviting scheme, including bid-inviting organizations and institutions, the time and place for opening of bidding, etc;

(VI)

instructions on signing the realty service contract;

(VII)

other instructions and other content as provided for by laws and regulations;

Article 11

The bid inviter shall£¬within 10 days upon the issuance of the bidding invitation, submit the following materials for filling by the administrative department of real estates of the people¡¯s government at the county level or above of the place where the realty project is located:

(I)

the government approval for the development and construction of the realty project relating to the realty management;

(II)

the bid-inviting announcement or bid invitation;

(III)

the bid-inviting documents;

(IV)

other materials as provided for by laws and regulations.

In case of violation of the provisions of laws and regulations during bid invitation, the administrative departments of real estates shall timely order the bid inviter to rectify.

Article 12

The bid inviter of the open bidding may pre-examine the bidding qualification of the bidding applicants according to the provisions of the bid-inviting documents.

For the realty management project carrying out the pre-examination of the bidding qualification, the bid inviter shall clearly state the conditions of the qualification pre-examination and the method for obtaining the bid-inviting documents on the bid-inviting announcement.

The documents of the qualification pre-examination shall generally include the application format of the qualification pre-examination, the notice of applicant, and the qualification documents, performance, technological equipment and financial situation of the enterprise which bidding applicants are required to provide, as well as the resumes, performance, etc certificate materials of projected project executives and main management persons.

Article 13

Upon qualification pre-examination, the bid inviter of the open bidding shall issue the qualified notification of qualification pre-examination to the bidding applicants who are qualified in the qualification pre-examination, inform them of the time, place and method for obtaining the bid-inviting documents, and issue the result of qualification pre-examination to the bidding applicants who are not unqualified.

In case of excessive bidding applicants who are qualified in the qualification pre-examination, the bid inviter may choose no less than 5 bidding applicants who are qualified in the qualification pre-examination.

Article 14

The bid inviter shall determine the reasonable time required by the bidder for preparation of the bidding documents. In case of the realty management project of open bidding, it shall be no less than 20 days from the day of issuing the bid-inviting documents to the day when the bidders submit the bidding documents.

Article 15

In case of carrying out necessary clarification or modification, the bid inviter shall notify all recipients of the bid-inviting documents in written at least 15 days prior to the deadline for submission of the bidding documents required in the bid-inviting documents. The content of clarification or modification is the integral part of the bid-inviting documents.

Article 16

The bid inviter may organize the potential bidding applicants to visit and investigate on the site of the realty project and provide the detailed materials of concealed project drawings, etc. For the question posed by the bidding applicants, the bid inviter shall make clarifications and send the written notice thereof to all recipients of the bid-inviting documents.

Article 17

The bid inviter shall not disclose name and quantity of the potential bidders who have obtained the bid-inviting documents and other relevant bid-inviting and bidding circumstances possibly influencing fair competition.

Article 18

Prior to determining the bid winner, the bid inviter shall not hold negotiations with the bidder on the substantive content of bidding price, bidding scheme, etc.

Article 19

In case of selecting realty management enterprise through bid-invitation and bidding, the bid inviter shall complete the bid-inviting and bidding works of the realty management in the time schedule specified as follows:

(I)

projects of newly established and currently marketable commodity housing shall be completed within 30 days prior to current marketing;

(II)

projects of presale commodity housing shall be completed before obtaining the Presale License of Commodity Housing;

(III)

newly established and not marketable projects shall be completed 90 days prior to delivery for use.

Chapter III Bidding

Article 20

The bidder herein refers to the realty management enterprise which follow the bid invitation of preliminary realty management and participate in competition.

The bidder shall have the corresponding qualification of the realty management enterprise and other conditions required in the bid-inviting documents

Article 21

In terms of questions that need to be clarified in the bid-inviting documents, the bidder shall put forth them in writing to the bid inviter.

Article 22

The bidder shall formulate the bidding documents that follow the substantive requirements and conditions posed in the bid-inviting documents according to the content and requirements of the bid-inviting documents:

The bidding documents shall include the following content:

(I)

bidding letter;

(II)

bidding quotation;

(III)

scheme of the realty management;

(IV)

other materials necessary for the bid-inviting document.

Article 23

The bidder shall seal and send the bidding documents to the place of bidding prior to the deadline for submission of the bidding documents as required in the bid-inviting documents. The bid inviter shall upon receipt of the bidding documents present the evidence indicating the recipient and the time of receipt to the bidder and properly preserve the bidding documents. Prior to the opening of bidding, any entity and individual shall not open the bidding documents. The bidding documents that are delivered after the deadline for submission of the bidding documents as required in the bid-inviting documents are invalid, and the bid inviter shall reject to receive them.

Article 24

The bidder may supply, modify or withdraw the bidding documents prior to the deadline for submission of the bidding documents as required in the bid-inviting documents, and notify the bid inviter in writing. The content of the supplement and modification is the integral part of the bidding documents and shall be delivered, received and preserved according to the provisions of Article 23 of the Measures. The content of the supplement and modification that are delivered after the deadline for submission of the bidding documents as required in the bid-inviting documents are invalid.

Article 25

The bidder shall not cheat to win the bid through falsehood in the name of others or by other means.

The bidder shall not mutually conspire to bid, squeeze out other bidders in fair competition or damage the legitimate rights and interests of the bid inviter or the bidders.

The bidder shall not mutually conspire to bid and damage the national interests, the social public interests or the legitimate rights and interests of others.

The bidder is prohibited from winning of the bid by unfair means of bribery to the bid inviter or the members of bidding evaluation commission, etc.

Chapter IV Opening, Evaluation and Winning of Bid

Article 26

Opening of bid shall be carried out at the same time as the deadline for submission of the bidding documents defined in the bid-inviting documents; the place of opening of bid shall be the place predetermined in the bid-inviting documents.

Article 27

Opening of bid shall be presided over by the bid inviter and all bidders shall be invited to participate in the opening. The opening of bid shall be carried out according to the following provisions:

The sealing condition of the bidding document shall be examined by the bidder or its representative, or be examined and notarized by the notary agency authorized by the bid inviter. Upon confirmation free of errors, the workers shall open the bidding document in public and read the bidder¡¯s name, the bidding price and other main content of the bidding documents.

For all the bidding documents received prior to the deadline for submission of the bidding documents required in the bid-inviting documents, the bid inviter shall open them in public.

The course of bidding opening shall be recorded and filed by the bid inviter for future reference.

Article 28

Bidding evaluation shall be in the charge of the Bidding Evaluation Commission established by the bid inviter by force of law.

The Bidding Evaluation Commission shall be composed of the representatives of the bid inviter and the experts in the realty management, and the number of the members shall be odd of no less than five, among which the experts in the realty management other than the representatives of the bid inviter shall be no less than 2-thirds of total members.

The expert members of the Bidding Evaluation Commission shall be confirmed by the bid inviter by the means of random sampling from the expert name list set up by the administrative departments of real estate.

The person of interest with the bidder shall not a member of the Bidding Evaluation Commission of the relevant project.

Article 29

The administrative departments of real estate shall set up a name list of experts for bidding evaluation. The administrative department of real estate of the people¡¯s government of provinces, autonomous regions and municipalities directly under the Central Government may combine the name list of experts or implement the computer networking of the expert name list for cities with a small number of experts.

The administrative department of real estate shall carry out training on laws and businesses with the experts in the expert name list, carry out comprehensive examination and evaluation on their bidding evaluation competence, probity and justness, etc, and timely cancel the expert qualification for bidding evaluation of the person who is incompetent or violates laws and disciplines. The person who is cancelled from the expert qualification of bidding evaluation shall not participate in any bidding evaluation activities.

Article 30

The members of Bidding Evaluation Commission shall perform their obligations carefully, fairly, faithfully and honestly.

The members of Bidding Evaluation Commission shall not contact for private purposes with any bidder or person of interest with the result of bid-invitation and shall not accept pecuniary and other benefits from the bidders, intermediary and other person of interest.

The members of Bidding Evaluation Commission and workers relating to the bidding evaluation activities shall not disclose the examination and appraisal and comparison of the bidding documents and the recommendation circumstances of the candidate bid winners and other circumstances relating to the bidding evaluation.

The workers relating to bidding evaluation activities in the preceding paragraph refer to all persons who get acquainted with the circumstances relating to the bidding evaluation because of participating in the supervision or routine work of bidding evaluation other than the members of Bidding Evaluation Commission.

Article 31

The Bidding Evaluation Commission may require in writing the bidders to clarify or explain the content of ambiguous meaning in the bidding documents. The bidder shall clarify and explain on them in written form, and the clarification and explanation shall not exceed the scope of the bidding documents or change the substantive content of the bidding documents.

Article 32

In case of convening a site demonstration meeting in the course of bidding evaluation, the bid inviter shall describe it in advance in the bid-inviting documents and indicate the relevant score weight.

The members of Bidding Evaluation Commission shall carry out the comprehensive evaluation according to the requirements of the Bidding evaluation in the bid-inviting documents and based on the circumstances of the score of the bidding document and the site demonstration, etc.

Except for the part of site demonstration, the bidding evaluation shall be conducted confidentially.

Article 33

The Bidding Evaluation Commission shall examine and appraise and compare the bidding documents against the standards and methods of the bidding evaluation defined by the bid-inviting documents and sign and confirm the results of bidding evaluation.

Article 34

Upon examination and appraisal, if the Bidding Evaluation Commission hold that all bidding documents are not in compliance with the requirements of the bid-inviting documents, the Bidding Evaluation Commission may veto all biddings.

In case all the realty management project that must conduct the bid-invitation by force of law are vetoed, the bid inviter shall initiate a new bid invitation.

Article 35

Upon the completion of bidding evaluation, the Bidding Evaluation Commission shall put forth a written report of bidding evaluation, illustrate the opinions of the Bidding Evaluation Commission on examination and appraisal and comparison to the various bidding documents, and recommend no less than 3 qualified candidate bid winners arranged in order according to the standards and methods of the bidding evaluation specified by the bid-inviting documents.

The bid inviter shall confirm the bid winner according to the order of candidate bid winners. If the candidate bid winners who are confirmed to win bid give up the bid or fail to perform the contract, the bid inviter may confirm other candidate bid winners as the bid winner according to order.

Article 36

The bid inviter shall confirm the bid winner 30 days prior to the deadline of the bidding valid term. The bidding valid term shall be stated in the bid-inviting documents.

Article 37

The bid inviter shall issue the notification of bid winning to the bid winner, and at the same time notify all the bidders failing in bid of the results and return their bidding documents.

The bid inviter shall, within 15 days upon the confirmation of bid winner, file with the administrative departments of real estate of the people¡¯s governments at the county level or above of the place where the realty project is located. The filing materials shall include materials such as the course of opening of bid and bidding evaluation, the means and reason on the confirmation of bid winner, the bidding evaluation of the Bidding Evaluation Commission and the bidding documents of the bid winner. In case of proxy of the bid invitation, the contract on proxy of the bid invitation shall be attached.

Article 38

The bid inviter and bid winner shall, within 30 days upon issuing the notification of bid winning, reach a written contract according to the bid-inviting documents and the bidding documents of bid winner; the bid inviter and the bid winner shall not reach other agreements departing from the substantive content of the contract.

Article 39

In case of failing to enter into a contract without proper reason, the bid inviter shall compensate for the damages thereof to the bid winner.

Chapter V Supplementary Provisions

Article 40

In case the bidder and other persons of interests hold that the bid-inviting and bidding activities are not in compliance with the relevant provisions of the Measures, they are entitled to put forth different opinions to the bid inviter or complain to the relevant department by force of law.

Article 41

In case the bid-inviting documents or the bidding documents are prepared in more than two languages, there must be a Chinese version; and in case of any discrepancies over the interpretation of different versions, Chinese version shall prevail. In case of any discrepancy between the amounts expressed in words and that in number, that in words shall prevail.

Article 42

For the residence scale that is relatively small specified in Article 3 of the Measures, upon the approval of the administrative departments of real estate of the people¡¯s governments of the district or county where the realty is located, the means of agreement may be adopted for selection of the realty management enterprise, and the standard of scale thereof shall be determined by the administrative departments of real estate of the people¡¯s governments of provinces, autonomous regions and municipalities directly under the Central Government.

Article 43

Reference will be made with the Measures when the owners and the owners' meeting select the realty management enterprises with the corresponding qualification by means of bidding.

Article 44

The Measures shall come into force on September 1, 2003.