Laws of the People's Republic of China

No. 13

Measures for the Implementation of International Tender Invitation and Bidding for Mechanical and Electrical Products were amended and adopted at the 11th executive meeting of the Ministry of Commerce of the People's Republic of China on September 23, 2004, and the amended Measures for the Implementation of International Tender Invitation and Bidding for Mechanical and Electrical Products are hereby promulgated and shall enter into force 30 days after the date of promulgation. Minister of the Ministry of Commerce, Bo Xilai

November 1, 2004

Measures for the Implementation of International Tender Invitation and Bidding for Mechanical and Electrical Products Contents Chapter I General Provisions

Chapter II Scope of Bidding

Chapter III Evaluation Experts

Chapter IV Bidding Documents

Chapter V Invitation to Tender and Bidding

Chapter VI Evaluation of Tender

Chapter VII Publication and Challenges

Chapter VIII Winning the Bid

Chapter IX Legal Liabilities

Chapter X Supplementary Provisions Chapter I General Provisions

Article 1

For the purpose of regulating the international tender invitation and bidding activities for mechanical and electrical products, safeguarding the state interests, the social public interests and the legitimate rights and interests of the parties involved in the tender invitation and bidding activities, enhancing the economic performance and the efficiency of capital usage, and ensuring the quality of bidding and products, and establishing an open, fair, just, good faith and selecting-the-best competition mechanism and tender evaluation principles for the international tender invitation and bidding, the present Measures are hereby formulated according to such laws and regulations as the Tender and Bidding Law of the People's Republic of China (hereinafter referred to as "the Bidding Law") and to the rules of the State Council concerning the division of responsibilities of the administrative supervision over the bidding activities of the relevant departments.

Article 2

The present Measures shall be applicable to the international tender invitation and biding activities of mechanical and electrical products within the territory of the People's Republic of China.

Article 3

The Ministry of Commerce shall be the state administrative department which oversees the international tender invitation and bidding for mechanical and electrical products, and be responsible for supervising and coordinating the international tender invitation and bidding work of mechanical and electrical products of the whole country, formulating the relevant rules, adjusting and publishing the scope of international tender invitation and bidding for mechanical and electrical products, examining and approving the qualifications of international tender invitation and bidding institutions, and undertaking the routine work of the National Tender Evaluation Committee.

The import and export administrative institutions of mechanical and electrical products (hereinafter referred to as "departments in-charge") of all provinces, autonomous regions, municipalities directly under the Central Government, cities directly under state planning and all departments shall be responsible for supervising and coordinating the international tender invitation and biding activities of mechanical and electrical products within their respective regions and departments.

Article 4

In general, the international tender invitation and bidding for mechanical and electrical products shall be carried out by the way of open bidding. Where the open tender method is unsuitable according to laws and administrative regulations, the way of invitation to tender by request may be adopted. Any project that adopted the way of invitation to tender by request shall be reported to the Ministry of Commerce for archival purpose, and invitation to tender by request shall be carried out pursuant to the handling formalities as specified in the present Measures.

The international procurement of mechanical and electrical products shall generally be carried out by way of international tender invitation and bidding. Where the origins of products to be purchased have been confirmed within the territory, the domestic bidding method may be adopted. Where the international tender invitation and bidding method is necessary for the procurement, no domestic bidding or any other method may be adopted to evade the international tender invitation and bidding.

Article 5

The National Tender Evaluation Committee shall be responsible for supervision over and inspection of the international tender invitation and bidding work of the projects which receive loans from international financial institutions, and be responsible for solving the relevant issues arising from the bidding process through coordination, examining the tender evaluation outcomes and issuing the Notice of Tender Evaluation Outcomes of the National Tender Evaluation Committee, and ensuring that the bidding activities comply with the principles of openness, fairness and justness.

Article 6

The Ministry of Commerce shall designate a special bidding website (hereinafter referred to as "the bidding website") to offer network services for the international tender invitation and bidding businesses of mechanical and electrical products. For the international tender invitation and bidding for mechanical and electrical products, such procedures relating to the bidding business as setting up archives for the bidding project, putting bidding documents on record, announcing bidding notices, selecting evaluation experts, publishing tender evaluation outcomes as well as handling challenges shall be accomplished at the bidding website.

Article 7

The "tenderee" as referred to in the present Measures is a state organ, enterprise, public institution or any other organization that purchases mechanical and electrical products by way of international tender invitation and bidding method when necessary.

The "tendering agency" as referred to in the present Measures is an enterprise as legal person, which meets certain conditions and has obtained the qualification for international tender invitation and bidding after applying to the Ministry of Commerce and engages in the international tendering agency services of mechanical and electrical products.

The "tenderer" as specified in the present Measures refers to a domestic or foreign legal person or any other organization which participates in the bidding in response to the requirements of the bidding documents.

Chapter II Scope of Bidding

Article 8

The procurement of the following mechanical and electrical products must be conducted by the way of international tender invitation and bidding:

(1)

the mechanical and electrical products subject to the international procurement and used in such projects as infrastructures and public undertakings which have a bearing upon the social public interests, public safety. The concrete scope of the products shall be found in Attachment I;

(2)

the mechanical and electrical products subject to the international procurement and used in the investment projects which entirely or partly use State capitals;

(3)

the mechanical and electrical products subject to the international procurement and used in the projects financed entirely or partly by the State;

(4)

the mechanical and electrical products subject to the international procurement and used in the projects which use loans and aid funds from an international financial institution or foreign government (hereinafter referred to as "foreign loans");

(5)

the mechanical and electrical products subject to the international procurement and used in the government procurement projects; and

(6)

any other mechanical and electrical product subject to the international procurement according to laws and administrative regulations.

Article 9

The international tender invitation and bidding may be unnecessary for any of the following conditions although it falls within the scope of bidding as listed by Article 8 :

(1)

the mechanical and electrical products which are given by foreign countries or through gratuitous assistance;

(2)

the parts and components supporting the accessory manufacturing;

(3)

used mechanical and electrical products;

(4)

the estimated price of a one-time product procuring contract being less than 1,000,000 yuan;

(5)

the price of mechanical and electrical products imported by foreign-funded enterprises being within the overall investment amount;

(6)

the samples and prototypes of machines for the use of research and development of productive enterprises and scientific research institutes;

(7)

the special products or special trades as specified by the State Council and the mechanical and electrical products for meeting the national significant emergencies;

(8)

the amount of preference of mechanical and electrical products being more than 50% of the estimated price of the product procuring contract when the manufacturer offers discounts;

(9)

the special moulds necessary for the production of productive enterprises;

(10)

the parts and components for the use of maintaining the products; or

(11)

any other mechanical and electrical products unfitting for the international procurement according to laws and administrative regulations.

Chapter III Evaluation Experts

Article 10

The Ministry of Commerce shall establish the national and local two-level system of expert databases at the bidding website, conduct dynamic administration on the experts of expert database, train them and make adjustments on time.

Article 11

The experts needed for the international tender invitation and biding activities of mechanical and electrical products shall be selected randomly from the national and local two-level system of expert databases at the bidding website by the tendering agency and owners. No tendering agency or owner may abandon the experts selected randomly without justifiable reasons, and an expert selected shall reply to the tendering agency in written form if he can't participate in the evaluation work of the bidding project due to objective factors. And the tendering agency shall state the causes on the website and carry out another random selection of experts upon receipt of the reply. Where the number of times for selecting experts exceeds three times, it shall be reported to the corresponding administrative department for archival purpose, and then the random re-selection of experts shall be carried out.

Article 12

An expert shall put forward an application by himself and be recommended by the department in-charge or a tendering agency for entering into the expert database. Any recommended expert shall fill in a "Recommendation Form of Evaluation Experts of International Tender invitation and bidding for Mechanical and Electrical Products", which shall be signed or sealed by the recommendation entity and submitted to the bidding website and be reported to the Ministry of Commerce for archival purpose at the same time.

To serve as an expert, one shall:

(1)

love the bidding undertaking and actively participate in the tender evaluation;

(2)

be familiar with the state laws, regulation and policies relating to bidding;

(3)

have fine political and professional quality, and abide by laws and observe disciplines;

(4)

have an undergraduate degree or the same educational level or above;

(5)

have a senior title in technology or economics or the same professional level, and have engaged in the related fields for more than eight years. For the experts engaging in the fields of new and high technology, the said conditions may be relaxed to some degree; and

(6)

be familiar with the domestic and overseas technical levels and developmental trends in his professional field.

Any expert who both complies with the conditions as set forth in the preceding paragraph and possesses any of the following conditions may be recommended to be an expert of the national expert database:

(1)

having a professional title of professor;

(2)

having undertaken any evaluation work of a large-scale national bidding project in the last five years;

(3)

enjoying a state allowance; or

(4)

having ever won a national level scientific prize.

Article 13

An expert shall perform the following duties according to the rules:

(1)

to undertake the work of examining and approving the bidding documents of the international tender invitation and bidding for mechanical and electrical products;

(2)

to undertake the evaluation work belonging to the Tender Evaluation Committee. The evaluation experts shall fill in the evaluation opinions respectively and assume the responsibilities for the opinions put forward by themselves;

(3)

to participate in the deliberation work of the issues challenged; and

(4)

to report any problem arising from the process of tender evaluation to the departments concerned, and put forward opinions and suggestions.

The experts shall be responsible for the evaluated items of the international tender invitation and bidding for mechanical and electrical products, and assume the corresponding responsibilities.

Article 14

The number of experts selected randomly shall be the number of experts actually needed. Where the one-time entrusted bidding amount of an international tender invitation and bidding project is more than 5 million US Dollars, more than half of the needed experts shall be selected from the national expert database.

For the same package under the same item of serial number of bidding project, each expert may only participate in one of such two kinds of work as the examination and approval of bidding documents or the tender evaluation. No external expert who has interests with the present bidding project or with the tenderee or any manufacturer may be selected as an expert by the tendering agency, and another selection of experts shall be required.

Article 15

Any expert who is employed to participate in the evaluation work of international tender invitation and bidding for mechanical and electrical products shall abide by the following work regulations:

(1)

to seriously enforce the state laws, regulations and policies relating to bidding;

(2)

to scrupulously perform duties, strictly keep secrets and be honest and self-disciplined;

(3)

to participate in the evaluation work of the bidding objectively, impartially and fairly; and

(4)

to withdraw on his own initiative if he has any interests with the bidding project or with the tenderee or any manufacturer.

Article 16

If the number of experts in the expert database is insufficient for the necessary number when selecting experts, the tendering agency and the tenderee may recommend experts by themselves, but the recommendation forms of the experts meeting the conditions shall be submitted to the bidding website so that they may enter into the national or local expert database as supplementary experts according to the related rules, and another random selection of the necessary experts shall be carried out.

Article 17

If the category of the bidding project is not included in the categories of trades or majors in the expert database, the tendering agency may make an application to the bidding website for the addition of such category, and the bidding website may put the recommended experts in the newly added category.

Article 18

Once the name list of experts is fixed upon selection, it shall be strictly kept secret. Any disclosure of secrets shall be reported to the corresponding department in-charge and another selection of experts in the expert database shall be carried out in addition to investigating the liabilities of the parties concerned. Where the disclosure of secrets has an impact upon the tender evaluation, the former bidding documents or tender evaluation outcomes shall become invalid.

Article 19

After the evaluation work of the specific project undertaken by the employed experts ends, the department in-charge or the tendering agency shall evaluate the experts in aspects such as the capacity, level and fulfillment of duties. The evaluation outcomes shall be divided into excellent, competent or incompetent, and be filed for archival purposes on the bidding website.

Chapter IV Bidding Documents

Article 20

A tenderee may, according to the commercial and technical requirements of mechanical and electrical products to be purchased, compile bidding documents by itself, or entrust a tendering agency or consulting service institution to compile bidding documents. The bidding documents mainly include the following:

(1)

the written invitation to tenders;

(2)

general instructions to tenderers;

(3)

names, quantities and technical specifications of the products under bidding;

(4)

contract clauses;

(5)

contract format; and

(6)

attachments:

(a)

the format of a tender letter;

(b)

a table for opening tenders;

(c)

a tender quotation by different items;

(d)

a table of product descriptions;

(e)

a deviation chart of technical specifications;

(f)

a deviation chart of commercial clauses;

(g)

the format of letter of guarantee of tender bond;

(h)

the format of power of attorney of legal representative;

(i)

the qualification certificate format;

(j)

the format of letter of guarantee of performance bond;

(k)

the format of letter of guarantee of advance payment of the bank;

(l)

a sample of letter of credit; and

(m)

other materials needed.

Article 21

In addition to the items as prescribed in Article 20 of the present Measures, the bidding documents shall contain the performance requirements and evaluation basis for the tenderers and the manufacturers.

To the important commercial and technical clauses (parameters) in the bidding documents, an asterisk "*" shall be added and it shall also be stated that if any of the clauses (parameters) with an asterisk "*" has not been satisfied, it will result in the annulment of the bid.

The evaluation basis not only constitutes the important commercial and technical clauses (parameters) which will result in the annulment of the bid, but also includes the maximum permissive deviation scope and largest number of terms in general commercial and technical clauses (parameters) and the calculation methods for adjusting the evaluated price within the permissive scope of deviation and number of clauses. The rate for raising the deviation price of general parameters shall commonly be 0.5% and the maximum shall be not more than 1%. No discriminatory clause or unreasonable requirement may be written down in the bidding document to exclude potential tenderers.

Article 22

The lowest evaluation method shall commonly be adopted for the international tender invitation and bidding for mechanical and electrical products. Due to special factors, a comprehensive evaluation method (method for giving marks) may be used for the tender evaluation of a bidding project. Under this circumstance, its bidding documents shall explicitly prescribe the scoring methods and standards for all commercial requirements and technical parameters and shall be reported to the Ministry of Commerce for archival purpose through the bidding website. All scoring methods and standards shall be an indivisible part of the bidding documents and be made public to the tenderers.

Article 23

The tendering agency shall send the bidding documents to the evaluation expert panel for examination and approval after their compilation, and report them to the corresponding department in-charge for archival purpose through the bidding website. The number of the members of the evaluation expert panel undertaking the work of examining and approving the bidding documents shall be an odd number of three or more experts.

The tendering agency may only mark the serial number of the bid and may not state the tenderee or the project name when it sends the bidding documents to the evaluation expert panel for examination and approval.

Article 24

When the evaluation expert panel examines and approves the bidding documents, they shall mainly examine and approve whether the commercial and technical clauses are discriminatory or unreasonable and whether the compiled contents in the bidding documents will cause more than three potential tenderers to compete, and shall fill its examination and approval opinions in the experts' opinion forms concerning the examination and approval of bidding documents (see Attachment II).

Article 25

The tendering agency shall, after the bidding documents are examined and approved by the evaluation expert panel, send all the examination and approval opinions and the final revisions of the bidding documents to the corresponding department in-charge for archival purpose through the bidding website, and shall report the original examination and approval opinions of the evaluation expert panel and the opinions of the tendering agency to the corresponding department in-charge for archival purpose. The opinions of the tendering agency shall include the explicit reasons for adopting or not adopting the opinions of the experts.

The department in-charge shall reply to the tendering agency through the bidding website within three days upon receipt of the said archival materials. The said time limit may be extended if coordination is required.

Article 26

The tendering agency shall report the revisions and reasons to the corresponding department in-charge for archival purpose through the bidding website 15 days before the date for opening the bid in case it needs to revise the bidding documents which have been put on sale, in accordance with the tenderee's demands. The tendering agency shall inform all those that have received the bidding documents of the revisions in written form. The revisions shall be one part of the bidding documents.

Chapter V Invitation to Tender and Bidding

Article 27

The tenderee or the tendering agency may make a bid announcement in other medias besides the mediae and the bidding website designated by the State upon receipt of the reply concerning putting on the bidding documents record.

The period of announcement for the bidding documents is also the period for putting on sale, which may not be less than 20 days beginning from the announcement date of the bid documents to the expiry day for the bidding, and may not be less than 50 days for large-scale equipment or complete sets of equipment.

Article 28

A tenderer shall compile the tender documents in accordance with the requirements of the bidding documents, and indicate article by article whether it meets the requirements and conditions as put forward by the bidding documents pursuant to its own commercial capabilities and technical level. As for the technical parameters with an asterisk ("*"), technical supporting materials shall be provided in the tender documents, otherwise the tender documents will not be recognized when evaluation is made on them.

Article 29

Where any tenderer believes that the bidding documents that have been put on sale contain discriminatory clauses or unreasonable requirements, he shall put forward his objections to the corresponding department in-charge in writing five days before the date for opening the bidding, and shall submit the corresponding certificates at the same time.

The tendering agency or the department in-charge shall deal with objections put forward by the tenderers prior to the bid opening and inform the corresponding tenderers of the settlement results.

Article 30

A tenderer shall register at the bidding website free of charge and send the tender documents to the bidding site before the specified deadline for the bid. The tenderer may supplement, revise, or withdraw the tender documents submitted prior to the specified deadline for the bidding. The supplements and revisions shall be part of the tender documents. Any tenderer may not supplement or revise the tender documents after the deadline for the bidding.

Article 31

Where there are less than three tenderers when the bidding expires, the bid opening shall be called off and another invitation to tender in accordance with the present Measures shall be carried out.

As for the bidding products of two or more tenderees being produced by the same manufacturer or integrator, they will be computed as one tenderee. As for two or more integrators using the products of the same manufacturer for one part of their integrated products, they will be counted as different integrators.

Article 32

The tendering agency shall open the bid at the specified time and site, and invite the tenderee, terderers and the relevant persons to participate in it.

The tender scheme and tender announcement (announcement of changing prices and other announcements) of the tenerers shall be called out altogether when opening the tenders, otherwise they will not be recognized when tenders are evaluated. The tender sum shall not include the products or services other than those as required by the bidding documents, otherwise it may not be reduced when tenders are evaluated.

The tenderee or the tendering agency shall make records for the opening of the tenders when opening tenders, and make records through the bidding website within two days after the opening of the tenders.

Chapter VI Evaluation of Tender

Article 33

A tender evaluation committee established in light of the present Measures shall be responsible for the tender evaluation. The number of members of the tender evaluation committee shall be an odd number of more than 5 persons and it shall be composed of the experts with senior professional titles or with corresponding professional level in related fields such as technology, economics, the tenderee and the representative of the tendering agency. Among them, no less than two thirds shall be the experts in the technology and economics fields.

Any tendering agency or any other person may not disclose the contents of the bidding project that are about to be evaluated and the circumstances relating to the tenderee and tenderers to any tender evaluation expert before the opening of the tenders.

Article 34

The name list of the members of the tender evaluation committee shall be kept confidential before the tender evaluation outcomes are made public. The tenderee and the tendering agency shall take measures to ensure that the tender evaluation be carried out in a strictly confidential manner. No entity or individual may interfere in or influence the process or outcomes of the evaluation of tender.

Article 35

The tender evaluation committee shall evaluate the tender documents in strict compliance with the commercial and technical clauses as stipulated in the bidding documents, and no criterions other than those as specified in the bidding documents may be the basis for tender evaluation, unless it is otherwise prescribed by the laws and administrative regulations. Each member of the tender evaluation committee shall separately fill in the evaluation opinion form of the tender evaluation committee (see Attachment III) when the tender evaluation ends. The evaluation opinion forms shall be an indispensable part of the tender evaluation report.

Where the lowest evaluation method is adopted, the person with the lowest evaluated price will be the recommended bid winner. Where the comprehensive evaluation method is adopted, the person with the highest comprehensive marks will be the recommended bid winner.

Article 36

During the process of commercial tender evaluation, the bidding shall be annulled and the technical tender evaluation shall be called off upon occurrence of any of the following conditions:

(1)

the tenderer fails to provide the tender bond or the tender bond is insufficient, or the validity period of the letter of guarantee is not enough, or the tender bond form or the bank issuing the letter of guarantee doesn't conform to the requirements of the bidding documents;

(2)

the tender documents have not been signed page by page according to the requirements;

(3)

the tenderer and its manufacturer have interests with the tenderee or the tendering agency ;

(4)

the tenderer fails to offer the letter of tender or the qualification certificate, or those offered do not conform to the requirements of bidding documents;

(5)

the tender documents have not been signed by the legal representative, or the person that signed on them doesn't have the valid power of attorney of the legal representative;

(6)

the performance of the tenderer can't meet the requirements of the bidding documents;

(7)

the validity period for the bidding is insufficient; or

(8)

the tender documents conform to other commercial clauses in the bidding documents stipulating the annulment.

Unless it is otherwise prescribed by the present Measures, the documents as listed in the preceding paragraph shall be offered in originals, and no clarification or supplement may be conducted prior to the opening of the tenders, otherwise it will result in the annulment of the bid.

Article 37

During the process of technical tender evaluation, the bid shall be annulled upon occurrence of any of the following conditions:

(1)

the tender documents fail to comply with the requirements of the main parameters with an asterisk ("*") in the technical specifications of the bidding documents, or the main parameters marked with an asterisk ("*") are not supported by the technical materials;

(2)

the general parameters in technical specifications of the bidding documents exceed the permissible maximum scope of deviation or the highest number of terms;

(3)

the response to the technical specifications of the bidding documents fails to comply with the facts or the false bidding occurs; or

(4)

the tendrer replicates some contents relating to the technical specifications in the bidding documents and takes them as one part of the tender documents.

Article 38

When the lowest evaluation method is adopted, the price evaluation shall be carried out in accordance with the following principles:

(1)

the tender evaluation shall be carried out in accordance with the evaluation basis as stipulated in the bidding documents. Any part, where the price adjustment is necessary, shall be adjusted in accordance with the stipulations of the bidding documents and the tender documents, and the illustrations shall be given;

(2)

the tenderer shall make a list of products to be supplied and make the quotation by different items in accordance with the requirements of the bidding documents and of the technologies of the products. In case the gaps and omissions exist, the highest prices of the said items in other effective tenders shall be credited into the evaluation sum when evaluating the tenders;

(3)

except for the overseas loan projects, the evaluation sum shall be calculated on the basis that the products get through to the place of delivery as specified by the tenderee. The price of the foreign products shall be CIF + import-link tax + internal transport cost + premium, etc; and the price of domestic products shall be ex-factory price (including the value-added tax) +internal transport cost + premium, etc; and

(4)

in case various currencies are permitted by the bidding documents for tender, those currencies shall be converted into US Dollars based on the current selling rates announced by the Bank of China during the process of price evaluation.

Article 39

The tenderer shall submit the original or photocopy of the credit certificate issued by the bank where the tenderer opened the primary account within three months prior to the bid opening day.

The tenderer may be required to clarify any ambiguity in the tender documents, but the substantive statements thereof may not be amended. The clarification shall be submitted in writing at the time as specified by the tender evaluation committee. Any tender meeting the requirements upon clarification shall be accepted as the effective tender.

Article 40

As for a project on which the pre-qualification is required, any tender of a tenderer which has passed the pre-qualification shall not be annulled due to its disqualification when conducting post-qualification unless the qualification of the aforesaid tenderer has substantively varied during the period of the bidding and can not meet the original qualification requirements any more.

As for a project on which the pre-qualification is unnecessary, where any tender of a tenderer has passed the compliance examination and the commercial tender evaluation, its commercial tender may not be annulled due to its disqualification unless the qualification of the aforesaid tenderer has substantively varied during the bidding period and can't meet the original qualification requirements any more.

Chapter VII Publication and Challenges

Article 41

After the tender evaluation ends, the tendering agency shall publish the tender evaluation outcomes at the bidding website, and the publication period is seven days.

The reasons for bid losing for each bid loser shall be filled respectively in the Publication Form of Tender Evaluation Outcomes in three categories in order, that is, commerce evaluation, technology evaluation and price evaluation. The contents filled in must clearly indicate the requirements of the bidding documents and the contents of the tenderers' responses. The contents of the Publication Form of Tender Evaluation Outcomes shall include the "name of the recommended bid winner and the manufacturer", "evaluation price" and "reasons for bid losing", etc, which shall accord with the tender evaluation report.

The publication of the tender evaluation outcomes is for-once. Any reason for bid losing that hasn't been published shall not be the basis for the annulment of the bidding or the bid losing. But the technical deviation issues of the tenderers who haven't participated in the technical evaluation due to the commercial annulment of the bid shall be excluded.

Article 42

The tender evaluation report (see Attachment IV) shall, within the publication duration of the tender evaluation outcomes, be sent to the corresponding department in-charge for archival purpose.

Article 43

The tendering agency shall explain the publication outcomes to the tenderers in response to the requirements of the tenderers after the publication outcomes are announced.

Article 44

All parties concerned may look up the contents of the tender evaluation outcomes through the bidding website.

Article 45

Any tenderer having objections to the tender evaluation outcomes may put forward challenges to the corresponding department in-charge on the website during the publication period. The tenderer shall firstly fill in the Form for Challenging the Tender Evaluation Outcomes online at the bidding website within the publication period, and shall send the Form for Challenging the Tender Evaluation Outcomes signed or sealed by the legal representative of the tenderer or by the person authorized by the legal representative and the relevant materials to the corresponding department in-charge within the publication period or within three days upon conclusion of the publication period, otherwise the form and materials will not be valid.

The tenderer may firstly put forward written objections to the tendering agency within the publication period of evaluation outcomes, and upon receipt of the written objections of a tenderer, the tendering agency shall reply in written or oral form before the expiration of publication period. Any tenderer who fails to receive a reply from the tendering agency or still holds objections to the reply may put forward challenges to the corresponding department in-charge online within the publication period.

Article 46

A tenderer may challenge any of the following aspects:

(1)

the validity of the bid inviting procedures;

(2)

the validity of the tender evaluation outcomes;

(3)

the validity of the members of the tender evaluation committee; or

(4)

the insufficiency of reasons for the bid losing found by the tenderer.

A challenger shall guarantee the authenticity and validity of the challenges and the relevant proofs put forward by himself, and shall bear the corresponding legal liabilities. In case the challenges are proved to be false upon verification, the corresponding department in-charge may give warnings to the said challenger. In case the challengers provided false information and the circumstances are serious, and as a result the process of the bid project is impacted, the corresponding department in-charge may give warnings to them and make announcements in addition.

Article 47

Any challenge under any of the following circumstances shall not be accepted:

(1)

being raised by a non-tenderer;

(2)

the challenge letter being without the signature or seal of the qualified tenderer;

(3)

failing to provide the relevant proofs according to the present Measures;

(4)

the challenge letter stating false information;

(5)

failing to submit the challenge letter to the corresponding department in-charge within the prescribed time limit; or

(6)

failing to put forward a challenge at the bidding website within the publication period.

Article 48

After the challengers put forward challenges online in accordance with the procedures, the tendering agency shall verify the challenges item by item, and report the written explanations to the challenges put forward by the challengers to the corresponding department in-charge within three days upon conclusion of the publication period. The explanations to the significant problems being challenged shall be made in writing by the members of the tender evaluation committee organized by the tendering agency or the tendering agency entrusted by the tender evaluation committee.

Article 49

If the department in-charge, after receipt of the challenges, verifies that any of the following problems has occurred during the process of tender evaluation, it shall order the tendering agency to reevaluate the tenders:

(1)

the tender evaluation hasn't been handled according to the present Measures;

(2)

the selection or makeup of experts fails to comply with the related provisions of the present Measures;

(3)

the tendering agency cannot give sufficient explanations and statements to the challenges put forward by the tenderers; or

(4)

any other act in violation of the Bidding Law or the present Measures.

The experts who carry out the reevaluation shall be selected again from the national expert database randomly, and may be supplemented from the local expert database if the national experts are insufficient. However, the national experts shall not be less than two thirds and the number of experts participating in the reevaluation shall not be less than the former number of evaluation experts. The reevaluation outcomes shall be reported to the corresponding department in-charge for archival purpose.

Article 50

The challenges shall be dealt with by such three methods as sustaining the original evaluation outcomes, altering the bid winner and invalidating the bidding.

The suggestions for dealing with the challenges put forward by the department in-charge shall come into force upon conclusion, and the publication outcomes shall be announced.

Article 51

A tenderer who still has objections to the treatment suggestions made by the department in-charge may file an administrative reconsideration or an administrative lawsuit.

Article 52

If there is no challenge to the evaluation outcomes during the publication period, the evaluation outcomes shall take effect automatically upon expiration of the publication period and the publication outcomes shall be announced.

Article 53

All departments in-charge and the tendering agency shall establish the authentic and complete challenge disposing archives, and shall keep the originals of the tender documents and the relevant materials properly for a statutory period.

Chapter VIII Winning the Bid

Article 54

As for a project legally subject to the bid, the department in-charge shall issue the Notice on Putting Tender Evaluation Outcomes on Record through the bidding website within three days upon announcement of the publication outcomes. The tendering agency shall issue a bid winning notice to the bid winner upon the strength of the Notice onPutting Tender Evaluation Outcomes on Record, and inform all the other tenderers of the outcomes online.

As for a project that uses foreign loans, the department in-charge shall issue the Notice of Tender Evaluation Outcomes through the bidding website within three days upon announcement of the publication outcomes. The tendering agency shall submit the tender evaluation report to the lenders upon the strength of the Notice of Tender Evaluation Outcomes, and send out a bid winning notice to the bid winner upon the approval thereof.

Article 55

The bid winning outcomes may not be altered without approval after the bid winning notice has been sent out. Where the alteration is necessary due to special causes, the reevaluation shall be conducted and be reported to the corresponding department in-charge for archival purpose.

Article 56

Where the bid winning products are from abroad or Hong Kong SAR, Macao SAR or Taiwan, the import formalities shall be handled according to the provisions of the State.

Article 57

The tenderee and the bid winner shall conclude a supply contract in accordance with the bidding documents and the tender documents within 30 days as of the date the bid winning notice is issued. The tenderee or the bid winner may not refuse to conclude or delay concluding the supply contract with the other party without justifiable causes.

Chapter IX Legal Liabilities

Article 58

Any tenderee who fails to carry out the invitation to tender for a project legally subject to the bidding, or evades the international tender invitation and bidding by means of dividing the project into several parts and any other means shall be ordered to get right within the time limit. Any tenderee who has any of the following acts shall be given a warning. If any of the said acts influences the impartiality of tender evaluation outcomes, the present bidding shall be invalid:

(1)

colluding with the tenderers to conduct false bidding;

(2)

modifying or altering the bidding documents which have been put on files and failing to report them to the corresponding department in-charge for archival purpose;

(3)

negotiating with any tenderer about substantial contents such as the bid price or plan, or entering into a supply contract with any tenderer, after the beginning of bid inviting activities but prior to the effectiveness of tender evaluation outcomes;

(4)

interfering in the work of invitation to tender, bidding and tender evaluation by unfair means;

(5)

refusing to accept the tender evaluation outcomes which have entered into force;

(6)

failing to perform the supply contract concluded with the bid winner;

(7)

disclosing the conditions and contents relating to the bidding subject to secret-keeping; or

(8)

any other act in violation of the Bidding Law or the present Measures.

Article 59

Where the tenderer is under any of the following circumstances, the present tender shall be invalid and the tenderer shall be given a warning. If the circumstance is serious, the tenderer shall be disqualified from participation in the bidding projects legally subject to the bidding for a term of 1 up to 2 years and which shall be published according to the related provisions of the Bidding Law:

(1)

colluding with the tenderee to carry out false bidding;

(2)

interfering in the work of invitation to tender and tender evaluation by unfair means;

(3)

concluding a supply contract with the tenderee prior to the effectiveness of tender evaluation outcomes ;

(4)

the tender documents and clarification materials being inconsistent with the facts, and making false bidding;

(5)

providing false proofs during the challenging course;

(6)

colluding with each other, driving up the bid price or recommending the bid winner in concealment by the tenderers;

(7)

the tenderer who wins the bid failing to conclude a contract with the tenderee according to the tender documents or the offered products failing to comply with the tender documents; or

(8)

any other act in violation of the Bidding Law or the present Measures.

If any act as listed in the preceding paragraph influences the impartiality of the whole bidding, the present bidding shall be invalid.

Article 60

The tendering agency under any of the following circumstances shall be given a warning. If the circumstance is serious, its tender inviting competency shall be suspended or disqualified according to the Bidding Law. If the said act influences the impartiality of the whole bidding, the present bidding shall be invalid:

(1)

disclosing the information and materials relating to the bidding that shall be kept secret;

(2)

failing to conduct the tender evaluation according to the tender evaluation principles of the present Measures, or the tender evaluation outcomes failing to reflect the actual conditions of the bidding documents and the tender documents;

(3)

colluding with the tenderee or the tenderers to handle false bidding;

(4)

modifying or altering the bidding documents which have been put on record and failing to report them to the corresponding department in-charge for archival purpose;

(5)

altering the bid winning outcomes without approval;

(6)

using the comprehensive evaluation method without approval by failing to report to the corresponding department in-charge for archival purpose;

(7)

the contents published at the bidding website being inconsistent with the tender evaluation report;

(8)

any other act in violation of the Bidding Law of the People's Republic of China or the present Measures.

Article 61

An employed expert having any of the following acts during the evaluation course shall be removed from the name list of the expert database according to the related provisions of the Bidding Law, and that shall be announced at the bidding website:

(1)

practicing frauds and seeking for self-interests;

(2)

disclosing the information and materials relating to the tender evaluation;

(3)

colluding with the tenderer, the tenderee or the tendering agency ;

(4)

failing to write out definite written suggestions when conducting the tender evaluation;

(5)

being evaluated as incompetent twice in one year; or

(6)

any other act in violation of the Bidding Law or the present Measures.

Article 62

Any act of all parties concerned who have participated in the international tender invitation and bidding causes losses to others due to violation of the laws and administrative regulations, he shall bear the compensation liabilities. The economic penalties to be imposed on him shall be determined in accordance with the Bidding Law.

Chapter X Supplementary Provisions

Article 63

Where there is significant divergence of opinions during the process of tender evaluation, the corresponding department in-charge may be consulted.

Article 64

In case any department in-charge finds any acts in violation of laws, regulations or the present Measures in the international tender invitation and bidding project, it may put forward challenges to this project within the publication period by referring to the provisions of Chapter VII of the present Measures.

Article 65

If the international tender invitation and bidding for mechanical and electrical products is carried out by using loans from international organizations or foreign countries or aid funds, the related provisions of the present Measures shall be strictly applied. In case the lender or the funds provider has different provisions concerning the specific conditions or procedures of the bidding, such provisions may be applied, but with the exception of those in breach of the state security of the People's Republic of China or social public interests.

Article 66

During the process of international tender invitation and bidding, the tenderee may launch another invitation to tender in case that any of the following circumstances occurs, after putting on record to the corresponding department in-charge:

(1)

upon the tender evaluation, it is found that there is no tenderer who can materially meet the commercial and technical requirements of bidding documents;

(2)

any significant change happens to the procurement plan of the tenderee; or

(3)

the present bidding is announced to be invalid by the corresponding department in-charge.

Except the conditions as listed in the preceding paragraph, no tenderee may launch another invitation to tender without approval.

Article 67

The "day" as mentioned in the present Measures refers to the calendar day, in case the expiry date is a legal holiday, the expiry date shall be extended naturally to the next day after the holiday.

Article 68

The power to interpret the present Measures shall be vested in the Ministry of Commerce.

Article 69

The present Measures shall come into force 30 days after the promulgation day. The former Implementation Rules on International Tender Invitation and Bidding for Machinery Products, the Notice concerning the Development of International Tender Invitation and Bidding Business on the "International Tender Invitation and Bidding Website of China", the Measures for Publication and Complaints of Challenges of the Tender Evaluation Outcomes of International Tender Invitation and Bidding for Mechanical and Electrical Products (for Trial Implementation), the Measures for the Administration of Employing Evaluation Experts for the International Tender Invitation and Bidding for Mechanical and Electrical Products and the Measures for Online Random Selection of the Evaluation Experts for the International Tender Invitation and Bidding for Mechanical and Electrical Products shall be abolished simultaneously.