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The Standing Committee of the National People’s Congress
Order of the President of the People’s Republic of China
No. 21
Invitation and Submission of Bids Law of the People’s Republic of China adopted by the 11th Meeting of the Standing Committee of the
Ninth National People’s Congress on August 30,1999, are hereby promulgated and shall come into force as of the day of January 1,
2000.
President of the People’s Republic of China, Jiang Zemin
August 30,1999
Invitation and Submission of Bids Law of the People’s Republic of China ContentsChapter 1 General Provisions
Chapter 2 Invitation of Bids
Chapter 3 Submission of Bids
Chapter 4 Opening of Bids, Evaluation of Bids and Determination of the Winning Bidder
Chapter 5 Legal Liability
Chapter 6 Supplementary Provisions
Chapter 1 General Provisions
Article 1
This Law is enacted in order to standardize bid invitation and bid submission activities, to protect the interests of the State, the
public interests and the lawful rights and interests of the parties involved in the bid invitation and bid submission activities,
to increase economic benefits and to guarantee project quality.
Article 2
This Law applies to bid invitation and bid submission activities conducted in the People’s Republic of China.
Article 3
Bids must be invited for the following construction projects undertaken in the People’s Republic of China, including surveying for,
and design, construction and supervision of, the projects as well as the procurement of import equipment, materials, etc. for the
construction:
(1)
Projects with a bearing upon the public interest and public safety such as large-scale infrastructure projects, public utility projects,
etc.;
(2)
Projects that are totally or partially funded by the investment of State-owned funds or financed by the State;
(3)
Projects using loans form international organizations or foreign governments, or aid funds.
The specific range and scale standards for the projects enumerated in the preceding paragraph shall be formulated by the State Council’s
development planning department in conjunction with the other relevant departments of the State Council, and then submitted to the
State Council for approval.
If any law or the State Council has provisions on the range of other projects that are subject to the invitation of bids, those provisions
shall prevail.
Article 4
No unit or individual may divide a project that legally requires the invitation of bids into several small parts or otherwise avoid
the invitation of bids.
Article 5
Bid invitation and bid submission activities shall follow the principle of openness, fairness, impartiality and good faith.
Article 6
The bid invitation and bid submission activities for a project that legally requires the invitation of bids shall not be subject to
territorial or departmental restrictions. No unit or individual may illegally restrict or preclude the participation in bid submission
by legal persons or other organizations from outside his or its own region or network and may not in any manner illegally interfere
in the bid invitation and bid submission activities.
Article 7
Bid invitation and bid submission activities and the parties involved shall subject to lawfully implemented supervisions.
The relevant administrative supervision departments shall supervise bid invitation and bid submission activities according to law,
and shall investigate and handle illegal acts committed during bid invitation and bid submission activities.
The administrative supervision of bid invitation and bid submission activities and the specific division of functions and powers among
the relevant departments shall be formulated by the State Council.
Chapter 2 Invitation of Bids
Article 8
A bid inviting party is a legal person or other organization that puts forward a project and invites bids therefore according to this
Law.
Article 9
If the relevant provisions of the State require that project examination and approval procedures be carried pot for a certain project
for which bids are to be invited, the examination and approval procedures shall be carried out and approval shall be obtained first.
The bid inviting party shall have the appropriate amount of funds, or have secured the source of funds, for conducting an invitation
of bids, and the same shall be truthfully specified in the bid invitation documents.
Article 10
Invitation of bids are divided into public invitation of bids and private invitation of bids.
The term “public invitation of bids” refers to the method whereby the bid inviting party, through a bid invitation announcement, invites
unspecified legal persons or other organizations to submit bids.
The term “private invitation of bids” refers to the method whereby the bid inviting party, through a bid invitation letter, invites
specified legal persons or other organizations to submit bids.
Article 11
If public invitation of bids is not appropriated for a certain project which the development planning department of the State council
has determined to be a key State project or which the people’s government of the province, autonomous region or municipality directly
under the Central Government has determined to be a key local project, a private invitation of bids may be conducted, subject to
the approval of the development planning department of the State Council or the people’s government of the province, autonomous region
or municipality directly under the Central Government.
Article 12
A bid inviting party has the right to appoint a bid invitation agency of its own choice to carry out bid invitation matters. No unit
or individual may in any way designate a bid invitation agency for the bid inviting party.
A bid inviting party, which has the capability to prepare the bid invitation documents and organize the bid evaluation, may carry
out the bid invitation matters itself. No unit or individual agency may coerce it into appointing a bid invitation agency to carry
out the bid invitation matters.
A bid invitation party which carries out bid invitation matters itself for a project for which the invitation of bids is legally required
shall report the same to the relevant administrative supervision departments for the record.
Article 13
A bid invitation agency is a social intermediary organization, which is established according to law and engages in the bid invitation
agency business and provides related services.
A bid invitation agency shall meet the following requirements:
(1)
Possessing business premises and the appropriate amount of funds to engage in the bid invitation agency business;
(2)
Possessing the specialized capability necessary to prepare bid invitation documents and organize bid evaluations;
(3)
Possessing the conditions provided in paragraph 3 of Article 37 of this law that can be used as the pool of technical and economic
experts as candidates for members of the bid evaluation committee.
Article 14
The qualifications of bid invitation agencies engaging in the bid invitation agency business for construction projects must be subject
to recognition by the competent department of construction administration of the State Council or of the people’s government of the
relevant province, autonomous region or municipality directly under the Central Government. The specific measures are to be formulated
by the competent department of construction administration of the State Council together with the relevant departments of the State
Council. The competent department for recognizing the qualifications of bid invitation agencies engaging in other bid invitation
agency business shall be specified by the State Council.
No superior-subordinate relationship or other relationship of shared interest may exist between a bid invitation agency and administrative
agencies or other State organs.
Article 15
A bid invitation agency shall undertake bid invitation matters within the scope of commission of the bid inviting party, and shall
observe the provision of this Law on bid inviting party.
Article 16
If the bid inviting party employs the public invitation of bids method; it shall issue a bid invitation announcement. The bid invitation
announcement for a project for which the invitation of bids id legally required shall be issued in a State-designated newspaper or
periodical, on a State-designated information network or in other State-designated media.
The bid invitation announcement shall specify such matters as the name and address of the bid inviting party, the nature, quantities,
location and time of the project, the method of obtaining the bid invitation documents, etc.
Article 17
If the bid inviting party employs the private invitation of bids method, it shall send a bid invitation letter to at least three specific
legal persons or other organizations which have the ability to handle the project and which have a good credit standing.
The bid invitation letter shall specify the matters stipulated in Paragraph 2 of Article 16 of this Law.
Article 18
Depending on the requirements of the project, the bid inviting party may require, in the bid invitation announcement or the bid invitation
letter, that potential bidders provide the relevant documents certifying their qualifications and details of their business situation
and may investigate the qualifications of potential bidders. If there are State regulations on the qualification requirements of
bidders, such regulations shall prevail.
A bid inviting party may not restrict or preclude potential bidders by specifying unreasonable conditions and may not discriminate
against potential bidders.
Article 19
The bid inviting party shall prepare bid invitation documents according to the special characteristics and requirements of the project.
The bid invitation documents shall specify all substantive requirements and conditions, including the technical requirements for
the project, the standards for the examination of the bidders’ qualifications, bid price requirements, the bid evaluation standards,
etc. and the principal terms of the contract to be executed.
If the State has regulations concerning the technology and standards for the project for which bids are invited, the bid inviting
party shall include the corresponding requirements in the bid invitation documents according to those regulations.
If the project for which bids are invited needs to be split up into phases and the construction period needs to be specified, the
bid inviting party shall split up the project into reasonable phases and specify a reasonable construction period and specify the
same in the bid invitation documents.
Article 20
The bid invitation documents may not require or specify a specific procedure or supplier or contain other particulars, which favor
or preclude potential bidders.
Article 21
In accordance with the specific circumstances of the project for which bids are invited, the bid inviting party may organize an on-the-spot
survey of the project for the potential bidders.
Article 22
The bid inviting party may not disclose to a third party the names or number of potential bidders, which have received bid invitation
documents or other bid invitation and bid submission details, which could affect fair competition.
If the bid inviting party has set a reserve price, the confidentiality of the reserve price shall be maintained.
Article 23
If the bid inviting party makes necessary clarification or amendments to the bid invitation documents, it shall notify in writing
all the parties that have received the bid invitation documents at least 15 days before the deadline for the submission of bidding
documents specified in the bid invitation documents. The contents of the clarifications or amendments shall become an integral part
of the bid invitation documents.
Article 24
The bid inviting party shall set a reasonable time necessary for the bidders to prepare their bid documents. However, for projects
which legally require the invitation of bids, the time between the date on which the issue of the bid invitation documents commences
and the deadline for the submission of bid documents by the bidders may not be less than 20 days.
Chapter 3 Submission of Bids
Article 25
A bidder is a legal person or other organization, which responds to an invitation of bids and participates in the bidding competition.
If a scientific research project for which bids are invited according to law permits individuals to participate in the bidding, the
provisions of this Law concerning bidders shall apply to those individuals submitting bids.
Article 26
A bidder shall have the capability to undertake the project for which bids are invited. If the relevant provisions of the State or
the bid invitation documents specify requirements as to bidder qualifications, the bidders shall possess the required qualifications.
Article 27
A bidder shall prepare its bid documents according to the requirements of the bid invitation documents. The bid documents shall respond
to the substantive requirements and conditions put forward in the bid invitation documents.
If the project for which bids are invited is for construction work, the particulars of the bid documents shall include the resumes
and business achievements of the person in charge of the project and the principal technical personnel intended to appoint, and the
machinery and equipment intends to use in completing the project, etc.
Article 28
The bidders shall deliver the bid documents to the bid submission address before the deadline for the submission of bid documents
specified in the bid invitation documents. After receiving the bid documents, the bid inviting party shall sign for receipt and preserve
the same, and may not open them. If there are fewer than three bidders, the bid inviting party shall invite bids anew according to
this Law.
The bid inviting party shall refuse to accept bid documents, which are delivered after the deadline for the submission of bid documents
specified in the bid invitation documents.
Article 29
Before the deadline for the submission of bid documents specified in the bid invitation documents passes, a bidder may supplement,
amend or withdraw the bid documents it has submitted, and it shall notify the bid inviting party thereof in writing. The content
of the supplementation or amendments shall become an integral part of the bid documents.
Article 30
If a bidder, on the basis of the actual circumstances of the project as specified in the bid invitation documents, intends to subcontract
out some of the non-principal, non-key parts of the work after its bid is accepted, it shall specify the same in the bid documents.
Article 31
Two or more legal persons or other organizations may organize as a consortium and jointly submit a bid as a single bidder.
Each of the members of a consortium shall have the appropriate capability to undertake the project for which bids are invited. If
the relevant provisions of the State or the bid invitation documents specify requirements as to bidder qualifications, each of the
members of the consortium shall possess the corresponding required qualifications. If the consortium is composed of units that specialize
in the same field, the qualification grade of the consortium shall be determined according to the qualification grade of the unit
with the lowest qualification grade.
The members of a consortium shall execute an agreement for joint submission of a bid, clearly specifying the work and responsibilities
each member intends to undertake, and shall submit such agreement together with the bid documents to the bid inviting party. If a
consortium submitted the wining bid, the member of the consortium shall jointly execute a contract with the bid inviting party and
bear joint and several liabilities towards the bid inviting party for the project that they have won.
A bid inviting party may not coerce bidders into organizing a consortium to jointly submit a bid and may not restrict the competition
among the bidders.
Article 32
Bidders may not collude on the bid price, may not preclude fair competition form other bidders or prejudice the lawful rights and
interests of the bid inviting party or other bidders.
Bidders and the bid inviting party may not collude in the submission of bids in order to harm the interests of the State, the public
interest or the lawful rights and interests of a third party.
Bidders are prohibited from bribing the bid inviting party or members of the bid evaluation committee in order to have their bid accepted.
Article 33
A bidder may not submit a below cost bid price in competing for a project, or submit its bid in the name of a third party or use other
fraudulent means to have its bid accepted.
Chapter 4 Opening of Bids, Evaluation of Bids and Determination of the Winning Bidder
Article 34
The bids shall be opened in public at the time of the deadline for submission of the bid documents as determined in the bid invitation
documents. The bids shall be opened at the predetermined place specified in the bid invitation documents.
Article 35
The opening of the bids shall be presided over by the bid inviting party, and all the bidders shall be invited to attend.
Article 36
When opening the bids, the bid inviting party or the representative chosen by him shall inspect the status of the seals on the bids;
alternatively, the same may be inspected and notarized by a notarial institution appointed by the bid inviting party. After the seals
have been confirmed to be intact, the working personnel shall break the seals in public and read out the names and bid prices of
the bidders and other major particulars of the bid documents.
All bid documents received by the bid inviting party by the deadline for submission of bid documents as specified in the bid invitation
documents shall have their seals broken and be read out in public at the time the bids are opened.
Minutes shall be kept of the bid opening procedures and be filed for future reference.
Article 37
Bid evaluation shall be the responsibility of a bid evaluation committee organized according to law by the bid inviting party.
If a project legally requires the invitation of bids, the bid evaluation committee shall be composed of the representative of the
bid inviting party and the relevant experts in technology, economics, etc. The number of members shall be an odd number of five or
more, and the number of experts in technology and economics, etc. shall account for at least two-thirds of the total.
The experts referred to in the preceding paragraph shall have worked in their relevant fields for at least eight years and have a
senior post_title or attained an equivalent professional level. They shall be selected by the bid inviting party from the list of experts
provided by the relevant departments of the State Council or the relevant departments of the people’s government of the province,
autonomous region or municipality directly under the Central Government or from the list of experts in the relevant fields forming
part of the bid invitation agency’s pool of experts. For ordinary projects, the experts may be selected at random. For special projects,
they may be determined directly by the bid inviting party directly.
Persons with a material interest in the bid inviting party may not sit on the bid evaluation committee for the relevant project. Those
already sitting on the committee shall be replaced.
The list of members of the bid evaluation committee shall be kept confidential until the winning bidder has been determined.
Article 38
The bid inviting party shall take the steps necessary to ensure that strict confidentiality is maintained during the evaluation of
the bids. No unit or individual may illegally intervene in or influence the course and result of the bid evaluation.
Article 39
The bid evaluation committee may require bidders to give the necessary clarification or explanation of those contents of the bid documents
whose meaning is not clear. However, such clarification or explanation may not exceed the scope of the bid documents or change the
substantive contents of the bid documents.
Article 40
The bid evaluation committee shall evaluate and compare the bid documents according to the evaluation standards and methods determined
in the bid invitation documents. If a reserve price has been set, reference shall be made thereto. After the bid evaluation committee
has completed the evaluation, it shall submit a written bid evaluation report to the bid inviting party and recommend qualified candidates
for the status of winning bidder.
The winning bidder shall be determined by the bid inviting party on the basis of the written bid evaluation report submitted, and
the candidates for the status of winning bidder recommended, by the bid evaluation committee. Alternatively, the bid inviting party
may authorize the bid evaluation committee to directly determine the winning bidder.
If the State Council has special provisions concerning the evaluation of bids for special projects, such provisions shall prevail.
Article 41
The bid of the winning bidder shall meet the following conditions:
(1)
It conforms to the greatest possible extent with all of the overall evaluation standards specified in the bid invitation documents;
(2)
It satisfies the substantive requirements of the bid invitation documents and its bid price is the lowest among those evaluated, except
for bid prices below cost.
Article 42
If, upon evaluation, the bid evaluation committee consider that none of the bids to meet the requirements of the bid invitation documents,
it may reject all of the bids.
If all the bids for a project, which legally requires the invitation of bids, are rejected, the bid inviting party shall invite bids
anew according to this Law.
Article 43
Until the winning bidder has been determined, the bid inviting party may not hold negotiations with bidders on substantive contents
such as bid price, bid plans, etc.
Article 44
The members of the bid evaluation committee shall perform their duties in an objective and impartial manner, observe their professional
ethics and bear personal liability for the evaluation opinions put forward by them.
The member of the bid evaluation committee may not have private contacts with bidders or accept property or other benefits from bidders.
The members of the bid evaluation committee and the relevant working personnel participating in the evaluation may not disclose details
of the evaluation and comparison of the bid documents, details of the recommendation of candidates for the status of winning bidder
and other relevant details of the bid evaluation.
Article 45
After the winning bidder has been determined, the bid inviting party shall issue a letter of acceptance to the winning bidder and
simultaneously inform all the losing bidders of the result of the determination of the winning bidder.
The letter of acceptance shall be legally binding on the bid inviting party and the winning bidder. If the bid inviting party changes
the result of the determination of the winning bidder, or the winning bidder renounces the project, which it has won, after the letter
of acceptance has been issued, it shall assume legal liability therefore according to law.
Article 46
The bid inviting party and the winning bidder shall conclude a written contract according to the bid invitation documents and the
winning bidder’s bid documents within 30 days of the date of issuance of the letter of acceptance. The bid inviting party and the
winning bidder may not subsequently conclude other agreements, which contravene the substantive terms of the contract.
The winning bidder shall pay a performance bond if the bid invitation documents require the winning bidder to do so.
Article 47
For projects which legally requires the invitation of bids, the bid inviting party shall submit a written report on the invitation
and submission of bids to the relevant administrative supervision department within 15 days of the date of determination of the winning
bidder.
Article 48
The winning bidder shall perform its obligations, and complete the project, which it has won, according to the contract. The winning
bidder may not assign the project that it has won to a third party, or break up the project, which it has won and subsequently assign
the parts to third parties.
Subject to the provisions of the contract or the consent of the bid inviting party, the winning bidder may subcontract out the completion
of some of the non-principal, non-key parts of the work for the project that it has won. The subcontractors shall possess the appropriate
qualifications required and may not subcontract its project.
The winning bidder shall be accountable to the bid inviting party for the subcontracted projects, and the subcontractors shall bear
joint and several liabilities for the subcontracted projects.
Chapter 5 Legal Liability
Article 49
Anyone who violates the provisions of this Law by failing to invite bids for a project for which bids must be invited, or by breaking
up a project for which bids must be invited into several small parts or by otherwise avoiding the invitation of bids, shall be ordered
to make amends within a specified time limit, and may be imposed a fine of mot less than 0.5% nor more than 1% of the amount of the
project contract; if the project is entirely or partially funded with State-owned funds, the implementation of the project or allocation
of funds may be suspended. The persons in charge directly responsible and the other directly responsible persons of the unit shall
be disciplined according to law.
Article 50
If a bid invitation agency violates the provisions of this Law by disclosing details or materials which relate to the bid invitation
and submission procedures and are subject to maintenance of confidentiality, or if it colludes with the bid inviting party or a bidder
in order to harm the interests of the State, the public interest or the lawful rights and interests of a third party, it shall be
imposed a fine of not less than 50,000 Yuan nor more than 250,000 Yuan, and the persons in charge directly responsible and the other
directly responsible persons of the unit shall be imposed a fine of not less than 5% nor more than 10% of the amount of the fine
imposed upon the unit; if there are illegal earnings, such illegal earnings shall also be confiscated; if the circumstances are serious,
the agency’s qualifications to act as bid invitation agent shall be suspended or revoked; if a crime is constituted, criminal liability
shall be investigated according to law. If losses are caused to others, liability for compensation shall be assumed according to
law.
If any of the acts mentioned in the preceding paragraph has an impact on the result of the determination of the winning bid, the acceptance
of the winning bid shall be void.
Article 51
It the bid inviting party imposes unreasonable conditions to restrict or preclude potential bidders or if it discriminates against
potential bidders, or if it imposes on bidders a mandatory requirement to organize a consortium or if it restricts the competition
among the bidders, it shall be ordered to make amends and may be imposed a fine of not less than 10,000 Yuan nor more than 50,000
Yuan
Article 52
If the party inviting bids for a project which legally requires the invitation of bids discloses to others the names or number of
potential bidders which have received bid invitation documents or other bid invitation and bid submission details which could affect
fair competition, or if it discloses the reserve price, it shall be given a warning and may additionally be imposed a fine of not
less than 10,000 Yuan nor more than 50,000 Yuan; the persons in charge directly responsible and the other directly responsible persons
of the unit shall be disciplined according to law; if a crime is constituted, criminal liability shall be investigated according
to law.
If any of the acts mentioned in the preceding has an impact on the determination of the winning bid, the acceptance of the winning
bid shall be void.
Article 53
If a bidder colludes with one or more other bidders or with the bid inviting party in the submission of its bid, or if a bidder seeks
to win the project by offering a bribe to the bid inviting party or one or more of the members of the bid evaluation committee, the
acceptance of its bid shall be void, the bidder shall be imposed a fine of not less than 0.5% nor more than 1% of the amount of the
project which it won and the persons in charge directly responsible and the other directly responsible persons of the unit shall
be imposed a fine of not less than 5% nor more than 10% of the amount of the fine imposed upon the unit; if there are illegal earnings,
such illegal earnings shall be confiscated; if the circumstances are serious, the bidder’s bidding qualifications for projects which
legally require the invitation of bids shall be suspended for one to two years and the same shall be publicly announced, or the administrative
department for industry and commerce shall revoke its business license; if a crime is constituted, criminal liability shall be investigated
according to law; if losses are caused to others, liability for compensation shall be assumed according to law.
Article 54
If a bidder submits its bid in the name of a third party or uses other fraudulent means to have its bid accepted, the acceptance of
the bid shall be void; if losses are caused to the bid inviting party, it shall assume liability for compensation according to law;
if a crime is constituted, criminal liability shall be investigated according to law.
If a bidder for a project which legally requires the invitation of bids commits any of the acts mentioned in the preceding paragraph
but the circumstances are not serious enough to constitute a crime, it shall be imposed a fine of not less than 0.5% nor more than
1% of the amount of the project which it won and the persons in charge directly responsible and the other directly responsible persons
of the unit shall be imposed a fine of not less than 5% nor more than 10% of the amount of the fine imposed upon the unit; if there
are illegal earnings, such illegal earnings shall be confiscated; if the circumstances are serious, the bidder’s bidding qualifications
for projects which legally require the invitation of bids shall be suspended for one to two years and the same shall be publicly
announced, or the administrative department for industry and commerce shall revoke its business license; if a crime is constituted,
criminal liability shall be investigated according to law; if losses are caused to others, liability for compensation shall be assumed
according to law.
Article 55
If the party inviting bids for a project which legally requires the invitation of bids violates the provisions of this Law by holding
negotiations with bidders on substantive contents such as bid prices, bid plans, etc., it shall be given a warning and the persons
in charge directly responsible and the other directly responsible persons of the unit shall be disciplined according to law.
If any of the acts mentioned in the preceding has an impact on the determination of the winning bid, the acceptance of the winning
bid shall be void.
Article 56
If a member of the bid evaluation committee accepts property or other benefits form a bidder, or if a member of the bid evaluation
committee or relevant working personnel participating in the evaluation discloses to others details of the evaluation and comparison
of the bid documents, the recommendation of candidates for the status of winning bidder or other relevant detail
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