Laws of the People's Republic of China

the National Development and Reform Commission

Order of the National Development and Reform Commission

N0.36

With a view to strengthening the qualification confirmation of bid invitation agencies for projects invested by the central government, and regulating the bid invitation agency activities of projects invested by the central government, the Measures for the Administration on the Qualification Confirmation of Bid Invitation Agencies for Projects Invested by the Central Government, which were specially formulated according to the Bidding Law of the People's Republic of China, the Administrative License Law of the People's Republic of China, the Decision of the State Council on the Reform of Investment Systems and the Letter of Confirmation on Projects Subject to Administrative Examination and Approval Preserved by the National Development and Reform Commission, are promulgated hereby and shall go into effect as of November 1, 2005.

Director General of the National Development and Reform Commission: Ma Kai

September 19, 2005

Measures for the Administration on the Qualification Confirmation of Bid Invitation Agencies for Projects Invested by the Central Government

Chapter I General Provisions

Article 1

With a view to improving the benefit of government investment, regulating the acts of bid invitation and bidding on government investment projects, advancing the service quality of bid invitation agencies and preventing corruption from the sources, the present Measures are formulated according to the Bidding Law of the People's Republic of China, the Administrative License Law of the People's Republic of China, the Decision of the State Council on the Reform of Investment Systems, the Letter of Confirmation on Projects subject to Administrative Examination and Approval Preserved by the National Development and Reform Commission and other relevant laws and regulations.

Article 2

All the bid invitation agencies undertaking the bid invitation agency business for projects invested by the central government within the territory of the People's Republic of China shall undergo qualification confirmation according to the present Measures.

Article 3

The projects invested by the central government as mentioned in the present Measures shall refer to the fixed assets investment projects totally or partly using the investment capital (including treasury bonds) within the central budget, special construction funds, foreign loan capital and other central finance investment capital.

In the case of any project invested by the central government that uses sovereignty external debt, if any international financial institution or the government of any loan country has requirements for the bid invitation and procurement, the requirements shall be followed.

Article 4

The bid invitation agency business as mentioned in the present Measures shall include the undertaking of bid invitation for project owners, management entities of professional projects, entities compiling the government investment plans upon the entrustment of tenderees, as well as the bid invitation agency business in such aspects as the survey, feasibility study, design, equipment, materials, construction, supervision and insurance of projects invested by the central government.

Article 5

The National Development and Reform Commission is the administrative department responsible for the qualification confirmation of bid invitation agencies for projects invested by the central government, and shall, according to the Bidding Law and the relevant regulations, make confirmation and supervision of the qualifications of bid invitation agencies.

Article 6

The bid invitation agency, which has obtained the qualification for an international bidding institution of electromechanical products as approved by the Ministry of Commerce, may undertake international bidding agency business on electromechanical products of projects invested by the central government.

For any procurement agency that undertakes the bid invitation on goods and services subject to government procurement according to the Government Procurement Law, the measures for its qualification confirmation and administration shall be formulated by the relevant departments separately, and the present Measures shall not apply.

Chapter II Qualification Application

Article 7

The qualifications of bid invitation agencies for projects invested by the central government are classified into Grade A and Grade B.

Bid invitation agencies with Grade A qualification may undertake the bid invitation agency business for all the projects invested by the central government.

Bid invitation agencies with Grade B qualification may only undertake the bid invitation agency business of the project invested by the central government, total investment of which is not more than RMB 200 million Yuan.

Article 8

An institution that applies for the qualification as a bid invitation agency for projects invested by the central government shall meet the following conditions:

1.

Being a social intermediary organization legally established and having the qualification of an independent enterprise legal person;

2.

Having no administrative subordination or other interest relationship with any administrative department or other state organ;

3.

Having fixed place of business, and facilities and business conditions as needed for carrying out bid invitation agency business for projects invested by the central government;

4.

Having sound organizations and internal management rules and regulations;

5.

Having corresponding expertise for compiling bid invitation documents and organizing bid assessment;

6.

Having set up the bid assessment expert database at a certain scale;

7.

The institution has not been subject to the punishment of suspension of the qualification or above by the relevant administrative departments during the latest three years for violation of the Bidding Law and other relevant administration provisions;

8.

The person in charge of the agency has not been subject to criminal penalties for violation of the Bidding Law and the relevant administration provisions during the latest three years; and

9.

Other conditions as provided for by the National Development and Reform Commission.

Article 9

An institution that applies for Grade A qualification of a bid invitation agency shall, apart from satisfying the conditions as prescribed in Article 8 of the present Measures, meet the following conditions:

1.

The registered capital is not less than RMB 8 million Yuan;

2.

The professional bid invitation personnel shall be not less than 50;

3.

Of the bid invitation professionals, the professionals who hold the intermediate professional title or above shall be not less than 70%;

4.

The number of experts in the bid assessment expert database shall be more than 800;

5.

It has undertaken bid invitation agency business for more than five years; and

6.

The number of bid invitation agency projects undertaken during the latest five years shall be more than 300, and the winning bid amount shall be more than RMB 5 billion Yuan accumulatively (based on the bid winning notice, the same hereinafter).

Article 10

Any institution that applies for Grade B qualification of a bid invitation agency shall, apart from satisfying the conditions as prescribed in Article 8 of the present Measures, meet the following conditions:

1.

The registered capital shall be not less than RMB 3 million Yuan;

2.

The professional bid invitation personnel shall be not less than 30;

3.

Of the bid invitation practitioners, the professionals who hold the intermediate professional title or above shall be not less than 60%;

4.

The number of experts in the bid assessment expert database shall be more than 500;

5.

It has undertaken bid invitation agency business for more than three years; and

6.

The number of bid invitation agency projects undertaken by it during the latest 3 years shall be more than 100, and the winning bid amount shall be more than RMB 1.5 billion Yuan accumulatively

Article 11

The bid invitation agency, which has undertaken bid invitation agency business for less than 3 years but meets the conditions as prescribed in Article 8 and items (1), (2), (3) and (4) of Article 10 , may apply for the preliminary qualification of a bid invitation agency for projects invested by the central government. After having obtained the preliminary qualification, it may undertake the bid invitation agency business of projects invested by the central government, the total investment of which is not more than RMB 100 million Yuan.

Article 12

The National Development and Reform Commission shall carry out the work of qualification confirmation of bid invitation agencies for projects invested by the central government periodically. The notice and requirements for the acceptance of relevant qualifications and the format text of the application materials shall be announced beforehand to ensure that the applicant have sufficient time to prepare the application materials.

Article 13

An institution, which applies for the qualification as a bid invitation agency for projects invested by the central government, shall submit the following materials as required:

1.

The application letter for the qualification as a bid invitation agency for projects invested by the central government;

2.

The photocopy of the duplicate of the business license of the enterprise legal person (affixed with the seal of confirmation of the original registration organ);

3.

The articles of association of the company;

4.

The form of conditions on the establishment of enterprise organizations;

5.

The basic information on the enterprise personnel;

6.

The bid invitation performance;

7.

The bid winning notice on the applied bid invitation performance;

8.

The name list of the personnel in bid assessment expert database; and

9.

Other relevant documents.

Article 14

The application materials for the qualification as a bid invitation agency for projects invested by the central government shall be submitted for preliminary examination to the development and reform committee at the level of province at the locality where the enterprise has registered. The organ of preliminary examination shall make examination on the application materials according the relevant provisions, bring forward preliminary examination opinions, and submit the opinions to the National Development and Reform Commission.

Article 15

The National Development and Reform Commission shall organize expert committee to make appraisal on the qualification application materials that has passed the preliminary examination of the provincial development and reform committee, and grant the qualification of a bid invitation agency for projects invested by the central government to the applicant who has passed the appraisal.

The National Development and Reform Commission shall, within 10 days after determining the appraisal result, issue the qualification certificate to the institution that has obtained the qualification as a bid invitation agency for projects invested by the central government, and meanwhile announce the result to the public.

Article 16

The valid period of the qualification certificate of a bid invitation agency for projects invested by the central government shall be three years. If any bid invitation agency needs to prolong the valid period of the qualification certificate, it shall file an application with the National Development and Reform Commission 30 days before the expiry of the valid period of the certificate.

Article 17

The National Development and Reform Commission shall carry out the appraisal work for upgrading the qualification of bid invitation agencies for projects invested by the central government periodically. If any Grade B or preliminary grade bid invitation agency has met the conditions of a higher grade one year after it has obtained the qualification of a bid invitation agency for projects invested by the central government for the first time, it may file an application for being upgraded as required at the time in the current year when applications for the qualification of bid invitation agencies are to be accepted.

Article 18

Any bid invitation agency under any of the following circumstances shall not be granted the qualification as a bid invitation agency for projects invested by the central government:

1.

Not meeting the relevant conditions as prescribed in the present Measures;

2.

Failing to provide authentic and complete materials as required; or

3.

Having acts in violation of laws and regulations in the bid invitation agency business, and having been put on records for examination by the judicial organization or having been subject to the punishment of suspension of the qualification by the relevant administrative departments during the latest three years.

Article 19

Where any bid invitation agency for projects invested by the central government alters its name, address or changes its legal representative, it shall apply for alteration of the qualification certificate to the National Development and Reform Commission.

In the case of division, merger or other major changes in its organization, the bid invitation agency for projects invested by the central government shall reapply for the qualification to the National Development and Reform Commission according to the present Measures.

Chapter III Supervision and Administration

Article 20

The bid invitation agencies for projects invested by the central government shall, according to the Bidding Law and the relevant administration provisions of the state on projects invested by the central government, undertake bid invitation agency business upon the entrustment of the tenderee, and collect the bid invitation agency service fees pursuant to the relevant state provisions.

Article 21

The bid invitation agencies for projects invested by the central government shall strictly enforce the relevant provisions on bidding and investment administration, voluntarily accept the supervision of government and society, maintain the legitimate rights and interests of each party of the bid invitation and bidding, and ensure the public interests, as well as undertake the relevant obligations of confidentiality.

Article 22

The bid invitation agency for projects invested by the central government shall, within 15 days after the end of the work of bid invitation for projects invested by the central government and issuing the bid winning notice, submit the Report on the Conditions of Bid invitation for Projects Invested by the Central Government to the National Development and Reform Commission.

The National Development and Reform Commission shall make spot check irregularly on bidding projects according to the report on project bid invitation.

Article 23

The National Development and Reform Commission shall be responsible for accepting the inquiry and complaints on the qualification of bid invitation agencies for relevant projects invested by the central government.

Article 24

The National Development and Reform Commission shall organize expert committee each year, and on the basis of the report, inquiry, complaint records of project bid invitation and the performance of bid invitation projects, and etc., make annual qualification examination on bid invitation agencies for projects invested by the central government. If any bid invitation agency fails to pass the annual examination in two consecutive years, it shall be degraded or even cancelled of the qualification of a bid invitation agency.

If any bid invitation agency has any of the following circumstances, it shall be deemed as failing to pass the annual examination:

1.

It has serious violation acts in the year;

2.

It fails to submit the Report on the Bid Invitation of Projects Invested by the Central Government and the annual examination materials in a timely manner and in compliance;

3.

The annual bid invitation performance of a Grade A bid invitation agency fails to reach RMB 1 billion Yuan; and

4.

The annual bid invitation performance of a Grade B bid invitation agency fails to reach RMB 500 million Yuan.

Chapter IV Penalties

Article 25

Where any bid invitation agency falsifies during the process of applying for its qualification, if it is under the process of application and examination, the application shall be cancelled; if it has obtained the qualification, the qualification shall be cancelled.

Article 26

Any bid invitation agency that submits false materials during the process of annual examination on its qualification shall be given the punishment of suspension or cancellation of the qualification in light of the circumstances.

Article 27

Where the way of bid invitation under entrustment is adopted for any project invested by the central government, if no bid invitation agency that has the corresponding qualification is entrusted for handling the bid invitation affairs, the bid winning result shall be deemed as invalid.

In case any bid invitation agency for projects invested by the central government undertakes the bid invitation agency business by exceeding the scope as prescribed in the present Measures, it shall be given the punishment of suspension of the qualification.

Article 28

If any bid invitation agency for projects invested by the central government lends, transfers or alters its qualification certificate, it shall be given the punishment of cancellation of the qualification.

Article 29

In case any bid invitation agency for projects invested by the central government has the following acts in the bid invitation agency business, the National Development and Reform Commission shall, in light of the circumstances, give it such punishments as warning, suspension of its qualification or cancellation of its qualification:

1.

Revealing the relevant information and materials relating to the bid invitation agency business that shall be kept secret;

2.

Colluding with the tenderee or the tenderer to damage the national interests, public interests or the lawful rights and interests of other people;

3.

Making negotiation with the tenderer on the tender price, the tender project and other substantive contents; or

4.

Amending bid invitation documents, tender quoted price and bid winning notice without permission.

If the bid winning result is affected by the aforesaid acts, it shall be deemed as invalid.

Article 30

In case any bid invitation agency commits any of the following acts, the National Development and Reform Commission shall order it to make correction, and give it a punishment of warning in light of the circumstances, or may impose upon it a fine of certain amount. For acts in item (5), a fine of 10,000 Yuan up to 50,000 Yuan may be imposed upon it; and for other acts, a fine of less than 10,000 Yuan may be imposed upon it.

1.

It fails to promulgate the announcement for bid invitation on the designated media;

2.

The time limit for issuing the bid invitation documents or documents of preliminary examination on the qualification does not comply with the relevant provisions;

3.

The constitution of the bid assessment committee and the expert structure do not comply with the relevant provisions;

4.

It fails to make bid invitation public once again when the number of tenderers does not comply with the legal requirements;

5.

It restricts or excludes potential tenderers with unreasonable requirements, discriminates against potential tenderers or restricts the competition between the tenderers;

6.

It fails to report the Report on the Bid Invitation of Projects Invested by the Central Government as required; or

7.

Other acts in violation of laws and regulations and the relevant provisions.

Article 31

The result of punishment on bid invitation agencies shall be announced to the public on the website of the National Development and Reform Commission in a timely manner.

In case any bid invitation agency causes any damage to others due to its illegal acts or irregularities, it shall assume the compensation liabilities according to law; if a crime is constituted it shall be investigated for criminal liabilities by being transferred to the judicial institution.

Chapter V Supplementary Provisions

Article 32

The power to interpret the present Measures shall reside in the National Development and Reform Commission.

Article 33

The present Measures shall go into effect as of November 1, 2005.