Laws of the People's Republic of China

The State Economy and Trade Commission

Decree of the State Economy and Trade Commission of the People's Republic of China

No.39

The Measures for the Administration of Bid Invitation and Tendering for Bid of Fixed Asset Investment Projects of Enterprises in the Industrial and Commercial Sectors have been adopted at the directors' executive meeting of the State Economic and Trade Commission and are hereby promulgated for effect as of December 1, 2002.

Director of the State Economy and Trade Commission Li Rongrong

October 29, 2002

Measures for the Administration of Bid Invitation and Tendering for Bid of Fixed Asset Investment Projects of Enterprises in the Industrial and Commercial Sectors

Chapter I General Provisions

Article 1

The present Measures have been formulated on the basis of the Law of the People's Republic of China on Bid Invitation and Tendering for Bid for the purpose of intensifying the administration of the fixed asset investment projects within the industrial and commercial sectors, regulating the bid invitation and tendering for bid of fixed asset investment projects in the industrial and commercial sectors, ensuring the fairness and justice of bid invitation and tendering for bid, protecting the lawful rights and interests of the parties concerned in bidding activities, increasing economic returns, and ensuring the quality of projects.

Article 2

The present Measures shall be applicable to the bid invitation and tendering for bid of the fixed asset investment projects in the industrial and commercial sectors within the territory of the People's Republic of China.

Article 3

The State Economy and Trade Commission (hereafter "the SETC") and the economy and trade commissions of all provinces, autonomous regions, municipalities directly under the Central Government, municipality separately listed on the State plan, and the Xinjiang Production and Construction Corps (hereinafter referred to as "provincial-level economy and trade commissions") are the administrative departments in charge of the bid invitation of the fixed asset investment projects within the industrial and commercial sectors (hereafter "the administrative department of bid invitation") that are responsible for organizing, guiding and coordinating the bid invitation and tendering for bid of the fixed asset investment projects within the industrial and commercial sectors.

The SETC shall be responsible for the administration of the bid invitation and tendering for bid of the following projects:

a.

The projects subject to submission by the SETC and approval of the State Council;

b.

The projects subject to the examination and approval of the SETC;

c.

The projects subject to the examination and approval of the provincial-level economy and trade commissions upon the authorization or entrustment of the SETC;

d.

The projects above a certain limit that have been put in the archivist files of the SETC by the enterprises concerned according to the relevant provisions;

e.

Other projects as provided by the SETC.

The provincial-level economy and trade commissions are responsible for the administration of the bid invitation and tendering for bid of the following projects:

a.

The projects subject to the examination and approval of the provincial economy and trade commissions within their respective jurisdictions;

b.

The projects that have been put in the archivist files of the provincial-level economy and trade commissions by the enterprises concerned according to the relevant provisions;

c.

Any other project whose bid invitation and tendering for bid shall be subject to the supervision and administration of the provincial-level economy and trade commissions upon the entrustment of the SETC.

Article 4

The purchase of the technologies (including engineering design), equipment (including materials), construction, installation and other goods and services under the item of the fixed asset investment projects within the industrial and commercial sectors shall be subject to bid invitation according to the provisions in relevant laws, administrative regulations and the present Measures:

a.

The important investment projects that concern the social public interest or the public security;

b.

The projects totally or partly funded by state-owned funds or state financing;

c.

The projects using the loan or financial aid of international organizations or foreign governments.

The specific scope and standard of scale of the projects as listed in the preceding paragraph shall be the Provisions Concerning the Scope of Bid Invitation and Standard of Scale of Engineering Construction Projects.

Where there are different provisions concerning the bid invitation of projects, such provisions shall be observed.

Article 5

Any of the projects that meet the requirements provided in Article 4 of the present Measures shall, as a general rule, be subject to public bid invitation.

In any of the following circumstances, public bid invitation may be held upon the consent of the administrative department of investment:

a.

The project involves any of the intellectual property rights or business secrets of the enterprise that implements the project;

b.

The contents of purchase need to be jointly designed or jointly produced by the project entity and the providers of goods;

c.

The project is general contracting in nature, and thus the technical plans thereof need to be determined by jointly with the providers of goods;

d.

The security or secret of the state is concerned so that it is inappropriate to hold public bid invitations;

e.

Any other circumstance in which requested bid invitation may be held according to the statutory provisions of the state.

Article 6

For any of the projects as provided in Article 4 of the present Measures, the project entity may, if any of the following circumstances occurs, make its purchases on its own initiative upon the consent of the administrative department of bid invitation:

a.

It is provided in the project reply that the objects to be purchased concern the protection of intellectual property rights such as patent, know-how, etc.;

b.

There are fewer than three providers that can provide the subject matter of purchase;

c.

The total investment of the project is less than 30 million yuan, and the estimated contractual value of each purchase of important equipments or materials is less than 1 million yuan;

d.

The total investment of the project is less than 30 million yuan, and the estimated contractual value of each construction is less than 2 million yuan.

e.

The total investment of the project is less than 30 million yuan, and the estimated contractual value of each purchase of such services as prospecting, design, supervision, etc. is less than 500,000 yuan;

f.

It is provided in any of the bilateral agreements concluded between China and any foreign government that it is inappropriate to render the purchase subject to bid invitation;

g.

It is provided in any of the laws, regulations or policies of the state that it is inappropriate to render the purchase subject to bid invitation.

Chapter II Bid Invitation and Tendering for Bid

Article 7

After obtaining the project feasibility study report ratified by the administrative department of investment or the archivist filing documents of the project and the feasibility study report formulated by the investment consultation institutions that have been granted with corresponding qualifications by the State Economy and Trade Commission ("SETC"), the project entity shall formulated a Checklist of Purchase for Fixed Asset Investment Projects in the Industrial and Commercial Sectors as enumerated in Attachment I and shall submit it to the administrative department of bid invitation for archivist purposes.

Article 8

Where the content of a project has undergone important adjustment, the project entity shall, according to relevant provisions, report to the administrative department of investment, and make revisions to the checklist of purchase on the basis of the ratification opinions of the administrative department of investment, and at the same time, present the revised checklist of purchase to the administrative department of bid invitation for archivist purposes.

The phrase "important adjustment" as mentioned in the preceding paragraph refers to that important changes have happened to the content of the project such as the guiding principles of products, key techniques, technologies of the project, etc. or the scale of adjustment of the total investment of the fixed asset investment project exceeds 10% of the original budget.

Article 9

The project entities that are capable of formulating bid invitation documents and of organizing bid appraisals may handle the bid invitations by themselves. the project entities shall, according to relevant provisions, go through the procedures of making archivist filing for their bid invitations.

Article 10

Project entities may entrust, on their own initiatives, any of the agencies of bid invitation that have been granted with corresponding qualifications by the SETC (hereafter "bid invitation agencies") to undertake the bid invitations. No institution that has not obtained the qualifications of bid invitation agency provided by the SETC may not engage in any of the bid invitation agency for fixed asset investment projects in the industrial and commercial sectors.

The bid invitation agencies that have obtained the qualifications of bid invitation agency shall engage in the bid invitation agency business that match with their qualifications according to the relevant provisions.

Article 11

The qualifications of the bid invitation agencies are classified into Grade A, Grade B and Grade B (preparatory).

The bid invitation agencies with the qualification of Grade A may engage in the bid invitation agency of the fixed asset investment projects of the industrial and commercial sectors both above and below the quotas, and the bid invitation agencies with the qualifications of Grade B and Grade B (preparatory) may engage in the bid invitation agency of the fixed asset investment projects of the industrial and commercial sectors below the quotas.

The term "projects above the quotas" as mentioned in the present Article refers to the domestically invested projects with a fixed asset investment of 30 million yuan or more and the foreign invested projects with a fixed asset investment of 30 million USD or more. The domestically invested projects above the quotas in the industrial sectors of electric power (including nuclear power), metallurgy of ferrous metals, chemical industry, construction materials, civil aviation, coal, petroleum chemical industry, petroleum natural gases, telecommunications (including postal administration), non-ferrous metals (including rare earth), etc. refers to those whose fixed asset investment is 50 million yuan or more.

Article 12

When entrusting agencies to hold bid invitations, a project entity shall provide the official replies of the projects and a checklist of purchase for entrusted bid invitation.

When accepting the entrustment of a project entity for bid invitation, a bid invitation agency shall show its certificate of qualifications, make clear the scope of bid invitation agency business that it engages in, and verify the official replies of the projects and the contents of the entrusted bid invitation. The parties concerned shall enter into written agreements of entrusted bid invitation.

Article 13

The bid invitation agencies and the project entities that hold bid invitations by themselves shall formulate bid invitation documents according to the requirements of the projects by referring to the Model Bid Invitation Documents for Fixed Asset Investment Projects in the Industrial and Commercial Sectors (to be formulated separately), and fill in the Appendixes for Archivist Filing of Bid Invitation Documents for Fixed Asset Investment Projects in the Industrial and Commercial Sectors as listed in Attachment II. The checklists of purchase subject to bid invitation, the agreements of entrusted bid invitation, the appendixes for the archivist filing of bid invitation documents and the bid invitation document shall be presented to the administrative department of bid invitation for archivist purposes.

Article 14

Bid invitation documents shall be published in designated mass media for no less than 20 days.

Article 15

In case of the bid invitation documents is changed, the bid invitation agency or the project entity that hold bid invitations by itself shall present the files to the administrative department of bid invitation for archivist purposes and have them published in good time. The changes shall be informed to all the bid tenderers that have subscribed to the bid invitation documents.

In case the time for opening bids is changed, public announcements shall also be made in corresponding mass media.

Article 16

Bid tenderers shall formulate bidding documents according to the requirements as provided in the bid invitation documents, and submit the sealed bidding documents and corresponding floppy disks to the bid invitation institution according to the time, venue required by the bid invitation documents. All bidding documents submitted overdue shall be invalid.

Article 17

Bid tenderers may, prior to the expiration of the prescribed deadline, make supplements or revisions to the bidding documents they have submitted or even cancel them. The supplements and the revisions shall form a component part of the bidding documents.

Chapter III Bid Opening, Bid Appraisal and Bid Winning

Article 18

Bid invitation agencies and the project entities that hold bid invitations by themselves shall open bids according to the time and venue as provided in the bid invitation documents. All tenderers shall be invited to participate in the bid opening, and the table of bid tenderers as well as the bid tendering announcements shall be called out. The records of bid opening and the floppy disks for bidding documents shall be sealed up on the spot for archivist filing at the administrative department of bid invitation.

Article 19

Where there are fewer than three tenderers for bid, the bid invitation agency or the project entity that holds the bid invitation by itself may cancel the bid opening, seal up the relevant bidding documents and inform the administrative department of bid invitation in good time. In the meanwhile, they shall make suggestions to the administrative department of bid invitation with regard to postponing the bid opening, making a new bid invitation or making the purchase by any other means, carry them out according to the opinions provided in the official reply of the administrative department of bid invitation.

Article 20

The bid appraisal committee shall consist of five members in odd numbers, among which the experts in the fields of technology and economics shall not be less than two third of the total members. The constitution of the bid appraisal committee and the selection of experts shall be made according to the Interim Provisions Concerning Bid Appraisal Committees and Bid Appraisal Methods. The names of the members of the bid appraisal committees shall be presented by the bid invitation institution before the bid opening to the administrative department for archivist purposes.

Article 21

The bid appraisal committee shall make appraise bidding documents according to the relevant provisions of the Interim Provisions Concerning Bid Appraisal Committees and Bid Appraisal Methods, and according to the bid appraisal principles and methods as stipulated in the bid invitation documents, etc.

Article 22

A bid invitation agencies or project entity that hold bid invitations by itself shall, within 20 days as of the bid appraisal of the project is finished, formulate a bid appraisal report as listed in Appendix III on the basis of the opinions of the bid appraisal committee, and present it to the administrative department of bid invitation for archivist purposes. In the meanwhile, it shall make public announcements in corresponding mass media to disclose the results of bid winning. The term of public announcement is ten days.

Article 23

During the term of public announcement of disclosing the results of bid invitation, if have of the tenderers of bid has objection, the bid invitation agency or the project entity that hold the bid invitation shall give a reply. However, no information about the bid appraisal by the bid appraisal committee may be disclosed in the replies. When the term of public announcement expires and no body lodges any objection, the bid invitation agency or the project entity that holds the bid invitation may issue bid winning notices to the bid winners, and shall, within five days as of the bid winning notices are sent, present to the administrative department of bid invitation for archivist purposes.

Article 24

The project entity shall, within 30 days as of the bid winning notices are sent, enter into contracts with the bid winners according to law.

Article 25

The project entity shall, within 10 days as of the conclusion of contracts, submit a duplicate of the contracts to the administrative department of bid invitation for archivist purposes.

Chapter IV Supervision of Bid Invitation

Article 26

The bid invitation agencies and the project entities that hold bid invitations by themselves may invite public notaries or the organs of discipline inspection or government supervision to notarize or supervise the bid invitation activities.

Article 27

Administrative departments of bid invitation shall send supervisors irregularly to supervise bid invitation activities. The supervisors shall show their Certificates of Authorized Supervision of Fixed Asset Investment Projects in the Industrial and Commercial Sectors as listed in Appendix IV which are signed by the administrative departments of bid invitation, and shall be entitled to participate in the major processes of the bid invitation of the designated supervision projects of bid invitation including the opening of bids, and the appraisal of bids, etc., be entitled to consult the materials of the authorized supervision projects of bid invitation, and shall submit supervision reports to the administrative departments of bid invitation.

Article 28

Bid invitation agencies shall, as pursuant to the requirements of the administrative department of bid invitation, send appropriate personnel in good time to serve as the supervisors of the bid invitation projects subject to the authorized supervision of the administrative departments of bid invitation.

Article 29

Supervisors shall be under the obligation of keeping all contents and information of the bid invitation projects subject to the authorized supervision of the administrative department of bid invitation secret.

Article 30

Bid invitation agencies shall accept the supervision of the project entities, and shall present to the project entities the Forms of Feedback from the Clients of Fixed Asset Investment Projects in Industrial and Commercial Sectors as listed in Appendix V, and present them to the administrative department of bid invitation for archivist purposes after they are filled in and sealed by the project entities.

Article 31

The administrative departments of bid invitation accepts the complaints that arise in the activities of bid invitation, and make investigations in collaboration with other relevant departments. If the complaint is undersigned, a written reply shall be given to the undersigned after verification.

Article 32

The SETC inspects irregularly the work of the bid invitation agencies and the project entities that hold bid invitations by themselves.

Article 33

The SETC makes annual inspections over the qualifications of the bid invitation agencies of the fixed asset investment projects in the industrial and commercial sectors. The specific rules for the annual inspections of the qualifications shall be separately formulated.

Chapter V Penalty Provisions

Article 34

Where any project entity violates the provisions of Article 4 of the present Measures by evading bid invitations by ways of dismembering the project into smaller parts or by any other means, it shall be ordered to get right, and the project may be suspended from implementation; for the projects that is wholly or partly funded by state-owned capital, the funds may be suspended from appropriation; and sanctions shall be given to the persons-in-charge of the project entity that is directly in charge and other persons that are held to be directly responsible.

Article 35

Where any of the tenderers for bid colludes with each other in bid invitations or wins the bid by means of offering bribes or by fraudulent means, the bid winning shall be invalidated, and the offender shall be fined not less than 5бы but not more than 10бы of the value of the bid winning project, and the persons-in-charge of the bid tendering entity who are directly responsible and the persons who are held to be directly responsible shall be fined not less than 5бы but not more than 10 бы of the fine imposed upon the entity. If any illegal gains have been incurred, such illegal gains shall be confiscated. If the circumstances are serious, the offender shall be disqualified from tendering for bids as provided in Article 4 of the present Measures within 1 or 2 years, or even the business license thereof may be canceled by the administration for industry and commerce. In case any losses have been caused to the project entity or the bid invitation agency, the offender shall be responsible for making compensations. If any crime has been constituted, the offender shall be subject to criminal liabilities.

Article 36

In case any bid invitation agency divulges any of the information or materials relating to the bid invitation or bid tendering activities that shall have been kept secret, or if it colludes with any bid caller or bid tenderer so as to impair the interest of the state, the general public, or the lawful interests of any other person, it shall be fined not less than 50,000 yuan but not more than 250,000 yuan, and the persons-in-charge of the agency who are directly responsible and other persons who are held to be directly responsible shall be fined not less than 5бы but not more than 10бы the fine imposed upon the agency. If any illegal gains have been incurred, such illegal gains shall be confiscated. The SETC shall, according to the seriousness of the offence, punish the offender by giving a written warning, circulating notices of criticisms, ordering to get right, suspending its qualifications from serving as a bid invitation agent for rectifications, degradation, and up to removing its qualification of serving as a bid invitation agent. If any loss has caused to any other person, it shall be responsible for making compensations. If any crime has been constituted, it shall be delivered to the judicial organs for criminal liabilities.

Article 37

The bid invitations and tenders for bid made by any institution that has failed to obtain the qualifications of bid invitation agency as provided by the SETC shall be invalidated. If any loss has been caused to any other people, the institution shall be responsible for making compensations, and shall be punished by the competent administration for industry and commerce. If any crime has been constituted, the offenders shall be delivered to the judicial organs for criminal liabilities.

Any bid invitation agency that has obtained the qualifications for bid invitation agency violates the provisions of Article 11 of the present Measures by engaging in any bid invitation agency activities which do not match with its qualifications, it shall be ordered by the administrative department of bid invitation to get right, and, according to the seriousness of the offence, be given a punishment of giving written warnings, notices of criticisms, being ordered to make rectifications, being suspended from engaging in bid invitation agency business for rectifications, being degraded or even being disqualified from serving as a bid invitation agent. If any loss has been caused to any other person, it shall be responsible for making compensations. if any crime has been constituted, it shall be delivered to the judicial organs for criminal liabilities.

Article 38

Where any project entity that holds bid invitations by itself violates any of the provisions of any law, administrative regulation or the present Measures by negotiating with any of the bid tenderers concerning such substantive contents as the price for bid tendering, or bid tendering plans, etc. or restricts or excludes any other bid tenderer by means of unreasonable conditions so that the competition between bid tenderers is impaired, it shall be ordered to get right, and may be fined not less than 10,000 yuan but not more than 50,000 yuan. If the result of bid winning has been affected by such act, the bid winning shall be invalid.

Article 39

In case any project entity determines the bid winner beyond the candidates recommended by the bid appraisal committee or determines the bid winner on its initiative in a project that is subject to bid invitation after all the bids have been rejected by the bid appraisal committee, the bid winning shall be invalid, and the entity shall be ordered to get right and may be fined not less than 5бы but not more than 10бы the value of the bid winning project. The persons-in-charge of the project entity who are directly responsible and other persons who are held to be directly responsible shall be given a sanction according to law.

Article 40

In case any expert of the bid appraisal committee is absent without leave in the process of bid appraisal so that the normal appraisal of bids is affected, or if he fails to perform his duties impartially in the process of bid appraisal, or accepts the property or any other good of any bid tenderer or any other interested party, or if he divulges any information of appraising and comparing bids, the recommendation of candidates for bid winning, or any other information relating to the bid appraisal, he shall be given a warning with the property accepted being confiscated, and may be fined not less than 3,000 yuan but not more than 10,000 yuan. The members of the bid appraisal committee who commits any of the illegal acts as mentioned above shall be disqualified and may not participate in any of the bid appraisal of the projects as described in Article 4 of the present Measures. If any crime has been constituted, the offender shall be delivered to the judicial organs for criminal liabilities.

Article 41

If, after the bid winning notices have been sent, the project entity fails to enter into contracts with the bid winners according to the bid invitation documents and the bidding documents of the bid winners, or if the project entity and the bid winners enter into any agreement that is substantially incompatible with the contracts, the project entity shall be ordered to get right and may be fined not less than 5бы but not more than 10бы the value of the bid won. If any loss has been caused to the bid winner, it shall be responsible for making compensations.

Article 42

In case, with the exception of failing to perform the contract due to force majeure, any bid winner fails to perform the contractual obligations, the caution money for performance shall not be returned, and it shall be disqualified from winning the bid. If the losses caused to the project entity exceeds the amount of caution money for performance, it shall compensate for the excess. If it fails to submit the caution money for performance, it shall be responsible for compensating for the losses of the project entity.

If any of the illegal act as described in the preceding paragraph is serious, the offender shall be disqualified from tendering for the bids as provided in Article 4 of the present Measures, or the business license thereof may even be canceled.

Chapter VI Supplementary Provisions

Article 43

The documents presented for archivist purposes as provided in the present Measures shall be validated automatically without the ratification of the administrative department of bid invitation.

Article 44

The power to interpret the present Measures shall remain with the SETC.

Article 45

The present Measures shall enter into force as of December 1, 2002. In case any of the provisions promulgated by the SETC prior to the present Measures conflicts with the present Measures, the present Measures shall prevail.

Appendixes:

I. Checklist of Purchase for Fixed Asset Investment Projects in the Industrial and Commercial Sectors(omitted)

II. Attached Table for Archivist Filing of Bid Invitation of Fixed Asset Investment Projects in the Industrial and Commercial Sectors(omitted)

III. Report for Appraisal of Fixed Asset Investment Projects in the Industrial and Commercial Sectors(omitted)

IV. Authorized Supervision Certificate of Fixed Asset Investment Project in Industrial and Commercial Sectors(omitted)

V. Form of Feedback from the Clients of Fixed Asset Investment Projects in Industrial and Commercial Sectors(omitted)