Bidding and Tendering Law of the People’s Republic of China — Full English Translation (1999, Amended 2017)

Chapter I — General Provisions

Article 1. This Law is enacted for the purposes of regulating bidding and tendering activities, protecting national interests, the public interest, and the lawful rights and interests of parties involved in bidding and tendering activities, improving economic efficiency, and ensuring the quality of projects.

Article 2. This Law shall apply to bidding and tendering activities conducted within the territory of the People’s Republic of China.

Article 3. The following categories of construction projects conducted within the territory of the People’s Republic of China, including the survey, design, construction, and supervision of such projects as well as the procurement of essential equipment and materials related thereto, shall be subject to bidding:

(1) large-scale infrastructure and public utility projects that relate to the public interest and public safety;

(2) projects funded entirely or partially by state-owned capital, or financed by state-owned capital as the controlling or dominant shareholder; and

(3) projects using loans or aid funds from international organizations or foreign governments.

The specific scope and threshold standards for the projects listed in the preceding paragraph shall be formulated by the State Council development and reform department in conjunction with relevant departments under the State Council, and submitted to the State Council for approval.

Where laws or administrative regulations provide otherwise for the scope of other projects subject to bidding, such provisions shall prevail.

Article 4. No entity or individual may carve up a project that is required by law to be subject to bidding, or circumvent bidding by any other means.

Article 5. Bidding and tendering activities shall be conducted in accordance with the principles of openness, fairness, impartiality and good faith.

Article 6. Bidding and tendering activities for projects that are required by law to be subject to bidding shall not be restricted by region or department. No entity or individual may unlawfully restrict or exclude legal persons or other organizations from outside the region or system from participating in bidding, or otherwise interfere with bidding and tendering activities by any means.

Article 7. Bidding and tendering activities and the parties involved shall, in accordance with law, accept supervision. The relevant administrative supervision departments shall, in accordance with law, supervise and inspect bidding and tendering activities, investigate and deal with unlawful acts in bidding and tendering activities.

The division of responsibilities among the relevant administrative supervision departments for supervising bidding and tendering activities shall be prescribed by the State Council.

Chapter II — Bidding

Article 8. A bid inviter is a legal person or other organization that proposes a construction project subject to bidding and conducts bidding in accordance with this Law.

Article 9. If a bidding project is required by relevant state regulations to undergo project approval formalities, the bid inviter shall first complete the approval formalities and obtain approval.

The bid inviter shall have the corresponding funds for the bidding project or have its sources of funds confirmed, and this shall be stated truthfully in the bidding documents.

Article 10. Bidding is divided into open bidding and invitation bidding.

Open bidding means that the bid inviter invites unspecified legal persons or other organizations to submit bids by means of a bidding announcement.

Invitation bidding means that the bid inviter invites specified legal persons or other organizations to submit bids by means of a bidding invitation letter.

Article 11. Where a project subject to bidding as prescribed by the State Council development and reform department is one for which open bidding is unsuitable due to the project’s special characteristics or the need to maintain state secrets, invitation bidding may be adopted; however, the matter shall be subject to approval by the State Council development and reform department or the people’s government of a province, autonomous region, or municipality directly under the Central Government.

Article 12. A bid inviter shall have the right to choose a bidding agency on its own and entrust it to handle bidding matters. No entity or individual may designate a bidding agency for a bid inviter by any means.

A bid inviter that has the capability to prepare bidding documents and organize bid evaluation may itself handle bidding matters. No entity or individual may compel a bid inviter to entrust a bidding agency to handle bidding matters.

Where a bid inviter handles bidding matters by itself for a project that is required by law to be subject to bidding, the bid inviter shall file the matter with the relevant administrative supervision department.

Article 13. A bidding agency is a social intermediary organization established in accordance with law to act as an agent in bidding matters and provide related services.

A bidding agency shall satisfy the following conditions:

(1) having a place of business and corresponding funds suitable for engaging in bidding agency business;

(2) having the corresponding professional expertise and capability to prepare bidding documents and organize bid evaluation; and

(3) having a pool of experts in technology, economics and other fields meeting the requirements prescribed by laws, administrative regulations and rules who are suitable for engaging in bidding agency business.

Article 14. The qualifications of bidding agencies shall be determined and supervised by the professional bodies established by the bidding agency industry in accordance with the relevant provisions of the State Council. The State Council development and reform department shall formulate specific measures for the self-regulatory management of bidding agencies.

Article 15. A bidding agency shall handle bidding matters within the scope of authorization by the bid inviter and shall comply with the provisions of this Law regarding bid inviters.

Article 16. Where a bid inviter adopts open bidding, it shall publish a bidding announcement. The bidding announcement for a project that is required by law to be subject to bidding shall be published through newspapers, periodicals, information networks or other media designated by the state.

The bidding announcement shall state the name and address of the bid inviter, the nature, quantity and place of implementation of the bidding project, the time for obtaining the bidding documents, and other relevant matters.

Article 17. Where a bid inviter adopts invitation bidding, it shall issue bidding invitation letters to three or more specific legal persons or other organizations that have the capability to undertake the bidding project and have a good reputation and standing.

Article 18. A bid inviter may, in light of the specific circumstances of the bidding project, require potential bidders to provide relevant qualification certificates and performance information, and examine the qualifications of potential bidders; where the state has other provisions on the qualifications of bidders, such provisions shall apply.

A bid inviter shall not restrict or exclude potential bidders by means of unreasonable conditions, nor shall it practice discrimination against potential bidders.

Article 19. A bid inviter shall prepare bidding documents based on the characteristics and needs of the bidding project. The bidding documents shall include all substantive requirements for the bidder, the main terms of the contract to be concluded, and other necessary information.

Where the state has provisions on the technology, standards and other aspects of the bidding project, the bid inviter shall state the corresponding requirements in the bidding documents in accordance with the provisions.

Where a bidding project requires the division into bid lots or the determination of construction periods, the bid inviter shall reasonably divide the bid lots and determine the construction periods, and state these in the bidding documents.

Article 20. The bidding documents shall not require or indicate a specific manufacturer or supplier, or contain any other content that favors or is directed toward a potential bidder.

Article 21. A bid inviter may, in light of the specific circumstances of the bidding project, organize potential bidders to visit the project site.

Article 22. A bid inviter shall not disclose to others the names and numbers of potential bidders who have obtained the bidding documents and other information relating to bidding and tendering activities that may affect fair competition.

Where a bid inviter has a pre-tender estimate, it shall keep the pre-tender estimate confidential.

Article 23. Where a bid inviter makes necessary clarifications or modifications to the issued bidding documents, it shall notify all recipients of the bidding documents in writing at least 15 days before the deadline for submission of bid documents specified in the bidding documents. Such clarifications or modifications shall be part of the bidding documents.

Article 24. A bid inviter shall determine a reasonable period of time within which bidders shall prepare their bid documents; however, for a project that is required by law to be subject to bidding, the period from the date of first issuance of the bidding documents to the deadline for submission of bid documents by bidders shall not be less than 20 days.

Chapter III — Submission of Bids

Article 25. A bidder is a legal person or other organization that responds to a bidding invitation and participates in the bid competition.

Where an individual is permitted to participate in bidding for a scientific research project subject to bidding in accordance with law, the provisions of this Law regarding bidders shall apply.

Article 26. A bidder shall possess the capability to undertake the bidding project; where the state has relevant provisions on the qualifications of bidders, or the bidding documents have relevant provisions on the qualifications of bidders, the bidder shall possess the prescribed qualifications.

Article 27. A bidder shall prepare its bid documents in accordance with the requirements of the bidding documents. The bid documents shall respond to the substantive requirements and conditions stated in the bidding documents.

Where the bidding project is a construction project, the bid documents shall include the resume and performance of the project leader and main technical personnel to be assigned, as well as the machinery and equipment to be used for the completion of the bidding project.

Article 28. A bidder shall deliver its bid documents to the bid submission location before the deadline for submission of bid documents specified in the bidding documents. Upon receiving the bid documents, the bid inviter shall sign for receipt and keep them, and shall not open them. Bidders with fewer than three bids after the deadline for submission of bid documents shall, in accordance with this Law, re-invite bids.

Bid documents delivered after the deadline for submission of bid documents specified in the bidding documents shall be rejected by the bid inviter.

Article 29. Before the deadline for submission of bid documents specified in the bidding documents, a bidder may supplement, amend or withdraw its submitted bid documents and notify the bid inviter in writing. The supplements and amendments shall be part of the bid documents.

Article 30. Where a bidder proposes, based on the actual circumstances of the bidding project specified in the bidding documents, to subcontract part of the non-principal and non-critical work of the winning project, it shall state this in the bid documents.

Article 31. Two or more legal persons or other organizations may form a consortium and submit a bid as one bidder.

All parties to the consortium shall possess the corresponding capability to undertake the bidding project; where the state has relevant provisions on the qualifications of bidders, or the bidding documents have relevant provisions on the qualifications of bidders, all parties to the consortium shall possess the corresponding prescribed qualifications. A consortium comprising entities of the same profession shall, in accordance with the principle that the qualification grade shall be determined by the entity with the lower qualification grade, determine the qualification grade of the consortium.

All parties to the consortium shall sign a joint bidding agreement specifying the work and responsibilities to be undertaken by each party, and shall submit the joint bidding agreement together with the bid documents to the bid inviter. If the consortium wins the bid, all parties to the consortium shall jointly sign a contract with the bid inviter and bear joint and several liability to the bid inviter for the matters covered by the winning contract.

A bid inviter shall not compel bidders to form a consortium for joint bidding, nor shall it restrict competition among bidders.

Article 32. Bidders shall not collude with one another in submitting their bid prices, nor shall they crowd out fair competition by other bidders or impair the lawful rights and interests of the bid inviter or other bidders.

Bidders shall not collude with the bid inviter to impair national interests, the public interest or the lawful rights and interests of others.

It is prohibited for bidders to obtain the winning bid by offering bribes to the bid inviter or members of the bid evaluation committee.

Article 33. Bidders shall not submit their bid prices below cost to compete unfairly, nor shall they submit their bids in the name of another person or otherwise fraudulently obtain the winning bid.

Chapter IV — Bid Opening, Evaluation and Award of Contract

Article 34. Bid opening shall take place publicly at the same time as the deadline for submission of bid documents specified in the bidding documents, and at the location predetermined in the bidding documents.

Article 35. Bid opening shall be presided over by the bid inviter, and all bidders shall be invited to participate.

Article 36. At bid opening, the bidders or their elected representatives shall check the sealing of the bid documents, and the bid inviter may also entrust a notary public to check and notarize the sealing; upon confirmation that the bid documents are correct, the staff shall open them in public, read out the names of the bidders, bid prices and other main contents of the bid documents.

All bid documents received before the deadline for submission of bid documents specified in the bidding documents shall be opened and read out in public at the bid opening.

The bid opening process shall be recorded and filed for reference.

Article 37. The bid evaluation committee shall be formed in accordance with law by the bid inviter.

The bid evaluation committee for a project that is required by law to be subject to bidding shall be composed of representatives of the bid inviter and experts in technology, economics and other relevant fields, with a total membership of five or more persons with an odd number, among whom the number of experts in technology, economics and other fields shall be not less than two-thirds of the total membership.

The experts referred to in the preceding paragraph shall have at least eight years of experience in the relevant field and hold a senior professional title or possess an equivalent professional level. The selection of such experts shall be made by the bid inviter from the roster of experts provided by the relevant departments under the State Council or the relevant departments of the people’s governments of provinces, autonomous regions, or municipalities directly under the Central Government, or from the experts in the roster of experts of the bidding agency. For ordinary bidding projects, the experts may be selected by random selection; for special bidding projects, the experts may be directly determined by the bid inviter.

No person who has an interest in a bidder may enter the bid evaluation committee for the relevant project; those already entered shall be replaced.

The list of members of the bid evaluation committee shall be kept confidential before the announcement of the winning bid results.

Article 38. A bid inviter shall adopt necessary measures to ensure that bid evaluation is conducted in strict confidentiality.

No entity or individual may unlawfully interfere with or influence the bid evaluation process and results.

Article 39. The bid evaluation committee may require a bidder to provide necessary clarifications or explanations of any ambiguous or unclear content in its bid documents; however, such clarifications or explanations shall not exceed the scope of the bid documents, nor shall they alter the substantive content of the bid documents.

Article 40. The bid evaluation committee shall, in accordance with the bid evaluation standards and methods specified in the bidding documents, evaluate and compare the bid documents; where a pre-tender estimate has been established, the estimate shall be used as a reference. Upon completion of the evaluation, the bid evaluation committee shall submit a written bid evaluation report to the bid inviter and recommend qualified winning bid candidates.

Where the bid inviter authorizes the bid evaluation committee to directly determine the winning bidder, the bid evaluation committee shall directly determine the winning bidder.

Article 41. The bid of a winning bidder shall satisfy one of the following conditions:

(1) the bid best meets the comprehensive evaluation standards specified in the bidding documents; or

(2) the bid price is the lowest evaluated bid price after review, provided that it is not lower than cost, except where the bid price is below cost.

Article 42. Where the bid evaluation committee, upon evaluation, determines that all bids do not meet the requirements of the bidding documents, it may reject all bids.

Where all bids for a project that is required by law to be subject to bidding are rejected, the bid inviter shall re-invite bids in accordance with this Law.

Article 43. Before the winning bidder is determined, the bid inviter shall not negotiate with bidders on the bid price, the bid scheme or other substantive matters.

Article 44. Members of the bid evaluation committee shall objectively and impartially perform their duties, comply with professional ethics, and assume personal responsibility for the bid evaluation opinions they present.

Members of the bid evaluation committee shall not have private contact with bidders, nor shall they accept property or other benefits from bidders.

Members of the bid evaluation committee and the staff involved in bid evaluation shall not disclose the evaluation and comparison of bid documents, the recommendation of winning bid candidates and other information relating to bid evaluation.

Article 45. After the winning bidder is determined, the bid inviter shall issue a letter of acceptance to the winning bidder, and at the same time notify all unsuccessful bidders of the result.

The letter of acceptance shall have legal effect on both the bid inviter and the winning bidder. Where, after the letter of acceptance is issued, the bid inviter changes the winning bid result or the winning bidder renounces the winning project, each shall bear legal liability in accordance with law.

Article 46. The bid inviter and the winning bidder shall, within 30 days from the date of issuance of the letter of acceptance, enter into a written contract in accordance with the bidding documents and the bid documents of the winning bidder. The bid inviter and the winning bidder shall not enter into any other agreement that deviates from the substantive content of the contract.

Where the bidding documents require the winning bidder to provide a performance bond, the winning bidder shall provide the performance bond.

Article 47. For a project that is required by law to be subject to bidding, the bid inviter shall, within 15 days from the date of determination of the winning bidder, submit a written report on the bidding and tendering situation to the relevant administrative supervision department.

Article 48. The winning bidder shall perform its obligations under the contract in accordance with the contract and complete the winning project. The winning bidder shall not transfer the winning project to another party, nor shall it split up the winning project and transfer it to other parties.

The winning bidder may, in accordance with the contract or with the consent of the bid inviter, subcontract part of the non-principal and non-critical work of the winning project to another party for completion. The party receiving the subcontract shall possess the corresponding qualifications and shall not further subcontract.

The winning bidder shall be responsible to the bid inviter for the subcontracted work, and the party receiving the subcontract shall bear joint and several liability to the bid inviter for the subcontracted work.

Chapter V — Legal Liability

Article 49. Where, in violation of this Law, a project that is required to be subject to bidding is not subjected to bidding, or a project that is required to be subject to bidding is carved up or bidding is circumvented by other means, the relevant administrative supervision department shall order rectification within a specified time limit and impose a fine of not less than 0.5 percent but not more than 1 percent of the contract value of the project; for a project funded entirely or partially by state-owned capital, the project may be suspended or the allocation of funds may be suspended; and disciplinary sanctions shall be imposed, in accordance with law, on the directly responsible person in charge and other directly responsible persons of the entity.

Article 50. Where a bidding agency, in violation of this Law, divulges information relating to bidding and tendering activities that should be kept confidential, or colludes with a bid inviter or bidder to impair national interests, the public interest or the lawful rights and interests of others, a fine of not less than RMB 50,000 but not more than RMB 250,000 shall be imposed; the directly responsible person in charge and other directly responsible persons of the entity shall be fined not less than 5 percent but not more than 10 percent of the fine imposed on the entity; the unlawful gains, if any, shall be confiscated; if the circumstances are serious, its bidding agency business shall be suspended or even disqualified; if a crime is constituted, criminal liability shall be pursued in accordance with law; and if losses are caused to another person, it shall bear compensation liability in accordance with law.

Where the acts mentioned in the preceding paragraph affect the winning bid result, the winning bid result shall be invalid.

Article 51. Where a bid inviter restricts or excludes potential bidders by means of unreasonable conditions, practices discrimination against potential bidders, compels bidders to form a consortium for joint bidding, or restricts competition among bidders, the relevant administrative supervision department shall order rectification and may impose a fine of not less than RMB 10,000 but not more than RMB 50,000.

Article 52. Where, for a project that is required by law to be subject to bidding, the bid inviter discloses to others the names and numbers of potential bidders who have obtained the bidding documents, or other information relating to bidding and tendering activities that may affect fair competition, or divulges the pre-tender estimate, the relevant administrative supervision department shall issue a warning and may impose a fine of not less than RMB 10,000 but not more than RMB 100,000; disciplinary sanctions shall be imposed, in accordance with law, on the directly responsible person in charge and other directly responsible persons of the entity; if a crime is constituted, criminal liability shall be pursued in accordance with law.

Where the acts mentioned in the preceding paragraph affect the winning bid result, the winning bid result shall be invalid.

Article 53. Where bidders collude with one another in submitting their bids or collude with the bid inviter in submitting bids, or where bidders obtain the winning bid by offering bribes to the bid inviter or members of the bid evaluation committee, the winning bid result shall be invalid; a fine of not less than 0.5 percent but not more than 1 percent of the winning project value shall be imposed; the directly responsible person in charge and other directly responsible persons of the entity shall be fined not less than 5 percent but not more than 10 percent of the fine imposed on the entity; the unlawful gains, if any, shall be confiscated; if the circumstances are serious, the bidders shall be disqualified from participating in bidding for projects that are required by law to be subject to bidding for a period of one to two years, and the matter shall be publicly announced, or the business license shall be revoked by the administrative department for industry and commerce; if a crime is constituted, criminal liability shall be pursued in accordance with law; and if losses are caused to another person, they shall bear compensation liability in accordance with law.

Article 54. Where a bidder submits its bid in the name of another person or otherwise fraudulently obtains the winning bid, the winning bid result shall be invalid; if losses are caused to the bid inviter, it shall bear compensation liability in accordance with law; if a crime is constituted, criminal liability shall be pursued in accordance with law.

Where, for a project that is required by law to be subject to bidding, a bidder commits the acts mentioned in the preceding paragraph and the circumstances have not yet constituted a crime, a fine of not less than 0.5 percent but not more than 1 percent of the winning project value shall be imposed; the directly responsible person in charge and other directly responsible persons of the entity shall be fined not less than 5 percent but not more than 10 percent of the fine imposed on the entity; the unlawful gains, if any, shall be confiscated; if the circumstances are serious, the bidder shall be disqualified from participating in bidding for projects that are required by law to be subject to bidding for a period of one to three years, and the matter shall be publicly announced, or the business license shall be revoked by the administrative department for industry and commerce.

Article 55. Where, for a project that is required by law to be subject to bidding, the bid inviter, in violation of this Law, negotiates with bidders on the bid price, the bid scheme or other substantive matters, the relevant administrative supervision department shall issue a warning and impose a fine of not less than RMB 10,000 but not more than RMB 100,000 on the directly responsible person in charge and other directly responsible persons of the entity; if the acts mentioned in the preceding paragraph affect the winning bid result, the winning bid result shall be invalid.

Article 56. Where a member of the bid evaluation committee accepts property or other benefits from a bidder, or where a member of the bid evaluation committee or a staff member involved in bid evaluation discloses to another person the evaluation and comparison of bid documents, the recommendation of winning bid candidates and other information relating to bid evaluation, the relevant administrative supervision department shall issue a warning, confiscate the property received and may impose a fine of not less than RMB 3,000 but not more than RMB 50,000; the member of the bid evaluation committee who commits the aforesaid unlawful acts shall be disqualified from serving as a member of bid evaluation committees; if a crime is constituted, criminal liability shall be pursued in accordance with law.

Article 57. Where a bid inviter determines the winning bidder from among persons other than the winning bid candidates recommended by the bid evaluation committee in accordance with law, or determines the winning bidder on its own after all bids have been rejected by the bid evaluation committee in accordance with law, the winning bid result shall be invalid. The relevant administrative supervision department shall order rectification and may impose a fine of not less than 0.5 percent but not more than 1 percent of the winning project value; disciplinary sanctions shall be imposed, in accordance with law, on the directly responsible person in charge and other directly responsible persons of the entity.

Article 58. Where a winning bidder transfers the winning project to another party, splits up the winning project and transfers it to other parties, or, in violation of this Law, subcontracts part of the principal or critical work of the winning project to another party, or where the party receiving the subcontract further subcontracts, the transfer and subcontracting shall be invalid; a fine of not less than 0.5 percent but not more than 1 percent of the value of the transferred or subcontracted project shall be imposed; the unlawful gains, if any, shall be confiscated; the parties may be ordered to suspend business for rectification; if the circumstances are serious, the business license shall be revoked by the administrative department for industry and commerce.

Article 59. Where a bid inviter and a winning bidder fail to enter into a contract in accordance with the bidding documents and the bid documents of the winning bidder, or where the bid inviter and the winning bidder enter into an agreement that deviates from the substantive content of the contract, the relevant administrative supervision department shall order rectification and may impose a fine of not less than 0.5 percent but not more than 1 percent of the winning project value.

Article 60. Where a winning bidder fails to perform the contract concluded with the bid inviter, its performance bond shall not be refunded; if the losses caused to the bid inviter exceed the amount of the performance bond, the winning bidder shall compensate for the portion exceeding the performance bond; and where a performance bond has not been provided, the winning bidder shall bear liability for the losses caused to the bid inviter.

Where a winning bidder fails to perform its obligations under the contract in accordance with the contract concluded with the bid inviter, and the circumstances are serious, the winning bidder shall be disqualified from participating in bidding for projects that are required by law to be subject to bidding for a period of two to five years, and the matter shall be publicly announced, or the business license shall be revoked by the administrative department for industry and commerce.

Where it is necessary to suspend business for rectification due to force majeure, the provisions of the preceding two paragraphs shall not apply.

Article 61. The administrative penalty decisions provided for in this Chapter shall be made by the relevant administrative supervision departments prescribed by the State Council, except where this Law provides that the administrative department for industry and commerce shall impose the penalty. The penalty of disqualifying a person from participating in bidding for projects that are required by law to be subject to bidding shall be decided by the relevant administrative supervision departments prescribed by the State Council in accordance with the division of responsibilities provided by the State Council.

Article 62. Where any entity violates this Law by restricting or excluding legal persons or other organizations from outside the region or system from participating in bidding, designating a bidding agency for a bid inviter, compelling a bid inviter to entrust a bidding agency to handle bidding matters, or otherwise interfering with bidding and tendering activities, the relevant administrative supervision department shall order rectification, and disciplinary sanctions shall be imposed, in accordance with law, on the directly responsible person in charge and other directly responsible persons of the entity.

Article 63. Where a staff member of a state organ who is responsible for supervising bidding and tendering activities in accordance with law engages in favoritism, abuses power, neglects duties, or if a crime is constituted, criminal liability shall be pursued in accordance with law; if a crime is not constituted, disciplinary sanctions shall be imposed in accordance with law.

Article 64. Where a project that is required by law to be subject to bidding violates the provisions of this Law and the winning bid result is invalid, the bid inviter shall, in accordance with the winning bid conditions specified in this Law, determine a new winning bidder from among the remaining winning bid candidates, or re-invite bids in accordance with this Law.

Chapter VI — Supplementary Provisions

Article 65. A bidder or any other interested party who believes that a bidding and tendering activity does not comply with the provisions of this Law shall have the right to raise an objection with the bid inviter or lodge a complaint with the relevant administrative supervision department in accordance with law.

Article 66. This Law shall not apply to projects involving state security, state secrets, emergency and disaster relief, or those for which bidding is otherwise unsuitable due to special circumstances such as the use of poverty alleviation funds requiring the employment of local workers through work-relief schemes, or the need to use specific patented or proprietary technologies by small and micro enterprises.

Article 67. Where international organizations or foreign governments provide loans or aid funds for construction projects, and the lender or provider has different provisions on the specific conditions for bidding, such provisions may apply, provided that the public interest of the People’s Republic of China is not impaired.

Article 68. This Law shall come into force on January 1, 2000.