Interim Provisions on Bid Evaluation Commission and Bid Evaluation Methods(No.12 Decree)
Interim Provisions on Bid Evaluation Commission and Bid Evaluation Methods
(Approved and promulgated by the State Development Planning Commission of the People's Republic of China,the State Economic and Trade Commission of the People's Republic of China,the Ministry of Construction of the People's Republic of China, the Ministry of Railways of the People's Republic of China, the Ministry of Communications of the People's Republic of China, the Ministry of Information Industry of the People's Republic of China and the Ministry of Water Resources of the People's Republic of China on July.5, 2001)
Detailed Content:
The State Development Planning Commission of the People's Republic of China,
The State Economic and Trade Commission of the People's Republic of China,
The Ministry of Construction of the People's Republic of China,
The Ministry of Railways of the People's Republic of China,
The Ministry of Communications of the People's Republic of China,
The Ministry of Information Industry of the People's Republic of China and
The Ministry of Water Resources of the People's Republic of China
Decree No.12
In order to standardize the bid evaluation activities and constitution of Bid Evaluation Commission, the State Development Planning Commission of the People's Republic of China,the State Economic and Trade Commission of the People's Republic of China,the Ministry of Construction of the People's Republic of China, the Ministry of Railways of the People's Republic of China, the Ministry of Communications of the People's Republic of China, the Ministry of Information Industry of the People's Republic of China and the Ministry of Water Resources of the People's Republic of China have jointly formulated the Interim Provisions on Bid Evaluation Commission and Bid Evaluation Methods which are now issued and shall come into force on July.5, 2001.
Minister in charge of State Development Planning Commission: Zeng Peiyan
Minister in charge of the State Economic and Trade Commission: Li Rongrong
Minister of Construction: Yu Zhengsheng
Minister of Railways: Fu Zhihuan
Minister of Communications: Huang Zhendong
Minister of the Information Industry: Wu Jichuan
Minister of Water Resources: Wang Shucheng
July.5, 2001
Interim Provisions on Bid Evaluation Commission and Bid Evaluation Methods
Chapter 1 General Provisions
Article 1 These Provisions are enacted in order to standardize the bid evaluation activities, to ensure the fairness and impartiality of bid evaluation and to protect the lawful rights and interests of the parties involved in the bid invitation and bid submission activities in accordance with the Tendering and Bidding Law of the People's Republic of China
Article 2 These Provisions apply to bid evaluation activities of a project which legally requires the invitation of bids.
Article 3 The bid evaluation activities shall follow the principle of openness, fairness, scientificity and basis of merits.
Article 4 The bid evaluation activities shall proceed according to law. No unit or individual may illegally interfere in or influence the bid evaluation course and result.
Article 5 The tenderer shall take measures necessary to ensure that strict confidentiality is maintained during bid evaluation.
Article 6 The bid evaluation activities and the parties involved shall subject to lawfully implemented supervisions.
The relevant administrative supervision departments shall supervise bid evaluation activities according to the respective functions and duties of State Council or local government and shall investigate and handle illegal acts committed during bid evaluation according to law.
Chapter 2 Bid Evaluation Commission
Article 7 The bid evaluation commission, organized according to law, takes charge of bid evaluation activities and recommends the candidates for being the successful bidder to the tenderer or directly determines the successful bidder upon authorization of the tenderer.
Article 8 Organization of bid evaluation commission shall be the responsibility of the tenderer.
The members list of bid evaluation commission shall be commonly determined prior to the bid opening and be kept confidential until the successful bidder has been determined.
Article 9 The bid evaluation commission shall be composed of the tenderer or the representative, familiar with relevant business, of the entrusted tendering agent 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 upwards of two-thirds of the total.
If the bid evaluation commission has the person responsible, the person responsible shall be elected from the members of bid evaluation commission or determined by the tenderer. The person responsible for the bid evaluation commission enjoys the same voting right with other members of the bid evaluation commission.
Article 10 The members of experts of the bid evaluation commission shall be selected from the list of experts provided by the relevant departments of the people's government above provincial level, or from the list of experts in the relevant fields forming part of the tendering agent’s pool of experts.
The bid evaluation experts may be selected according to the preceding paragraph through a random drawing or direct determination. For ordinary projects, the experts may be selected at random. If projects, requiring especially complicated technique, high demanded speciality or with special state requirements, make incompetent the experts determined at random, the experts may be determined directly by the tenderer
Article 11 The bid evaluation experts shall meet the following requirements:
A shall have worked in their relevant fields for at least eight years and have a senior title or attained an equivalent professional level;
B shall be familiar with the relevant laws and regulations of tendering and bidding and have the practical experience related to bid project;
C shall have the capability of fulfilling their duty adhering to the principles of earnest, impartiality, honesty and probity.
Article 12 The person may not become the member of the bid evaluation commission under either of the following circumstances:
A anyone has near relative of the bidder or the main person responsible of the bidder;
B anyone is staffed by the project administration department or administrative supervision department;
C anyone with economic interest in the bidder may influence the impartial evaluation of bids;
D anyone used to receive administrative or criminal penalty due to the illegal acts committed during tendering, bid evaluation and other activities related to tendering and bidding activities.
The member of the bid evaluation commission shall volunteer to request a removal of himself from the commission under either of the circumstances according to the preceding paragraph.
Article 13 The members of the bid evaluation commission 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 commission may not have private contacts with any bidder or person with material interest in results of tender offer or accept property or other benefits from bidders, agents and other persons with material interest.
Article 14 The members of the bid evaluation commission and the relevant working personnel participating in the bid evaluation may not disclose details of the evaluation and comparison of the bid documents, details of the recommendation of candidates for being a successful bidder and other relevant details of the bid evaluation.
The relevant working personnel participating in the bid evaluation, mentioned in the preceding paragraph, refer to all personnel from outside members of the bid evaluation commission and familiar with the relevant bid evaluation situation for they participate in the supervision of bid evaluation or affairs work.
Chapter 3 Preparation of Bid Evaluation and Preliminary Evaluation
Article 15 The members of the bid evaluation commission shall prepare the corresponding form provided for bid evaluation, earnestly study the bidding documents and at least know and acquaint with the following contents:
A the objective of the tender;
B the range and property of bid project;
C main technical requirements, standards and commercial clauses stipulated in the bidding documents;
D the bid evaluation standards, the bid evaluation methods and the related factors needing consideration during bid evaluation all stipulated in the bidding documents.
Article 16 The tenderer or its entrusted tendering agent shall furnish the important information and data necessary for bid evaluation to the bid evaluation commission.
If the tenderer has set a reserve price, the reserve price shall be kept confidential and viewed as reference during bid evaluation.
Article 17 The bid evaluation commission shall evaluate and compare the bids systematically according to the bid evaluation standards and methods stipulated in the bidding documents. The bid evaluation standards and methods not stipulated in the bidding documents may not be viewed as the basis for bid evaluation.
The bid evaluation standards and methods stipulated in the bidding documents shall be reasonable while may not include any content which favors or precludes the prospective bidders, or may not interfere with or restrict the competition among the bidders.
Article 18 The bid evaluation commission shall put the bids in sequence on the basis of bid quotation or other methods stipulated in the bidding documents. If the prices are quoted in different currencies, the bid prices shall be converted to RMB at the central parity rate published by Bank of China on the date of bid opening.
The bidding documents shall set regulations for exchange rate criterion and exchange rate risk. If the regulations are not set, the bidder shall bear the exchange rate risk.
Article 19 The bid evaluation commission may require bidders in writting to give the necessary clarification, explanation or improvement of those contents of the bids with unclear meaning, the inconsistent statements on the same issue or the obvious letter and character mistakes. However, such clarification, explanation or improvement shall proceed in writing and may not exceed the scope of the bids or change the substantive contents of the bids.
In case of difference between amounts in uppercase and lowercase, the one in uppercase shall prevail; in case of difference between total bid price and unit prices, the unit prices shall prevail, except for the obvious mistake in radix point of single price; in case of discrepancy in explanation of versions of bids in different characters, the version in Chinese shall prevail.
Article 20 During bid evaluation, if the bid evaluation commission finds that a bidder submits its bids in the name of a third party, that a bidder colludes with one or more bidders in submission of its bids, that a bidder seeks to become the successful bidder by offering a bribe, or that a bidder uses other fraudulent means in submission of bids, this bidder’s bids shall be rejected.
Article 21 During bid evaluation, if the bid evaluation commission finds that the bid prices of one bidder is apparently lower than the bids prices of the other bidders or than the reserve price when set, thus making its bid price likely lower than its individual cost, the bid evaluation commission shall request a written statement and the relevant documentary evidence by the bidder. However, if the bidder fails to offer reasonable explanation or provide the relevant documentary evidence, the bid evaluation commission shall reject the bidder’s bids for establishing the submission of its bids at a below cost bid price.
Article 22 If the qualification requirements for a bidder do not conform to the provisions of the relevant regulations issued by the state and the requirements of the bidding documents, or if a bidder refuses to conduct clarification, explanation or improvement of the bids according to requirements, its bids may be rejected by the bid evaluation commission.
Article 23 The bid evaluation commission shall examine whether all of the bids respond to all the substantial requirements and conditions stipulated in the bidding documents or not. The bids failing to respond substantially shall be rejected.
Article 24 The bid evaluation commission shall examine and list the entire bid bias of the bids item by item on the basis of the bidding documents.
The bid bias consists of major bias and subtle bias.
Article 25 The following circumstances belong to major bias:
A where the bid guarantee is furnished not according to the bidding documents or there is a flaw in the bid guarantee furnished;
B where the bids do not bear the signature of the representative authorized by the bidder or the official seal of the unit;
C where a bid project’s completion period, indicated in bids, exceeds the period stipulated in the bidding documents;
D where the bids clearly do not conform to requirements of technical specification or technical standards;
E where the mode of goods packing, the testing standard and method all indicated in the bids do not conform to requirements of the bidding documents;
F where there is requirement unacceptable to the tenderer in the bids;
G where the bids do not conform to other substantive requirements stipulated in the bidding documents.
Under either of the above-mentioned circumstances, the bids shall be viewed as the failure to response substantively to the bidding documents and shall be rejected in accordance with these Provisions Article 23. If the bidding documents have other provisions concerning major bias, such provisions shall prevail.
Article 26 Subtle bias refers to cases that the bids response substantively to requirements of the bidding documents, but have missed items in some exceptional place in or furnish incomplete technical information and data, etc. And the improvement of these missed items or incomplete places would not cause unfair result to other bidders. The subtle bias would not influence the validity of the bids.
The bid evaluation commission shall request the bidder with subtle bias to improve in writing before the end of bid evaluation. If the bidder rejects to improve, the quantification may be made to the subtle bias which is not favorable to this bidder during the detailed evaluation and the quantitative standards shall be stipulated in the bidding documents.
Article 27 If the submission of bids clearly lacks competition as a result of less than three effective bids after the bid evaluation commission rejects the ineligible bids or defines the bids to be rejected, the bid evaluation commission may reject all the bids.
If the bidders are less than three or all the bids are rejected, the tenderer shall invite bids anew according to law.
Chapter 4 Detailed Evaluation
Article 28 The bid evaluation commission shall conduct further evaluation and comparison concerning technical part and commercial part of the eligible bids through preliminary evaluation in accordance with the evaluation standards and methods stipulated in the bidding documents.
Article 29 The evaluation methods consist of the evaluated lowest bid price method and the comprehensive evaluation method or other evaluation methods allowable by laws and administrative regulations.
Article 30 The evaluated lowest bid price method is generally applicable to bid projects with universal technology and performance standard or in which the tenderer has no special requirements concerning their technology and performance.
Article 31 The bid which can meet the substantive requirements of the bidding documents and have the evaluated lowest bid price according to the evaluated lowest bid price method shall be recommended as the candidate for being a successful bidder.
Article 32 If the evaluated lowest bid price method is adopted, the bid evaluation commission shall make price adjustment necessary to all the bidder’s bid prices and commercial part of bids according to the bid evaluation price adjustment method stipulated in the bidding documents.
If the evaluated lowest bid price method is adopted, the bids of the successful bidder shall fall short of the technical requirements and standards stipulated in the bidding documents but the bid evaluation commission dose not have to convert the price of technical part of bids.
Article 33 The bid evaluation commission shall draw up a “Bid Price Comparison Sheet” and submit it to the tenderer together with the written bid evaluation report after the detailed evaluation is finished according to the evaluated lowest bid price method. The “Bid Price Comparison Sheet” shall bear the bidder’s bid price, the price adjustment and statement for commercial bias and the evaluated final bid price.
Article 34 The bid projects not suitable to adopt the evaluated lowest bid price method shall generally adopt overall evaluation method to conduct evaluation.
Article 35 According to the overall evaluation, the bid which conforms to the greatest possible extent to all of the overall evaluation standards specified in the bidding documents shall be recommended as the candidate for being a successful bidder.
Weighing whether the bids conforms to the greatest possible extent to all of the evaluation standards specified in the bidding documents may adopt the method of currency conversion, scoring method or other methods. Factors needing quantification and the weight shall be explicitly stipulated in the bidding documents.
Article 36 When all evaluation factors quantified, the bid evaluation commission shall base the quantitative index on the same foundation or the same standard to make bids comparable.
After the quantification of technical part and commercial part is made, the bid evaluation commission shall weight the quantitative results of these two parts for the overall evaluation price or overall evaluation score of each bid.
Article 37 The bid evaluation commission shall draw up a “Overall Evaluation Sheet” and submit it to the tenderer together with the written bid evaluation report after the bid evaluation is finished according to the overall evaluation method. The “Overall Evaluation Sheet” shall bear the bidder’s bid price, any amendment, the adjustment for commercial bias, the adjustment for technical bias, the evaluation of all evaluation factors and the final evaluation results of each bid.
Article 38 If the bidder is allowed to submit the optional bids, the bid evaluation commission may conduct the evaluation for the optional bids submitted by the bidder to decide whether to accept the optional bids according to the provisions of the bidding documents. The optional bids of the bidder who fails to conform with the conditions for determination of the successful bidder shall not be considered.
Article 39 For the bid project divided into more than one single contracts, if the preference submitted by the bidder for obtaining the entire project contract is allowed in the bidding documents, the bid evaluation commission may conduct an examination concerning the preference submitted by the bidder to decide whether to award the bid project as an entire contract to the successful bidder. If the bid project is awarded as an entire contract, the bid of the bidder who is successful in the entire contract shall be most favorable to the tenderer.
Article 40 The bid evaluation and determination of bids shall be completed 30 working days prior to the deadline for bid validity period. If the bid evaluation and determination of bids fails to be completed 30 working days prior to the deadline for bid validity period, the tenderer shall inform all the bidders of the extension to the bid validity period. The bidder who rejects the extension to the bid validity period shall have the right to withdraw the bid security. The bidder who agrees to the extension to the bid validity period shall extend the appropriate period of its bid guarantee validity, but may not amend the substantive content of the bids. If the bidder suffers losses due to the extension to the bid validity period, the tenderer shall pay compensation, except for the extension to the bid validity period by Force Majeure.
The bidding documents shall indicate the bid validity period. The bid validity period counts as of deadline for submission of bids.
Chapter 5 Recommendation of Candidates for the Status of Successful Bidder and Determination of Bids
Article 41 The bid evaluation commission shall promptly deal with or put forward the suggestions for dealing with the problems found during bid evaluation and make written record.
Article 42 After bid evaluation, the bid evaluation commission shall put forward the written bid evaluation report and make a copy to relevant administrative and supervision departments. The bid evaluation report shall bear the following contents:
A Basic Statistics and Date sheet:
B List of members of the bid evaluation commission;
C Bid opening record;
D Suitable Summary Sheet for Bid Opening;
E Statement of rejection of bids;
F Evaluation standards and methods or Evaluation factor sheet
G Evaluated price or score evaluated comparison sheet
H Evaluated taxis of bidders;
I List of recommended candidates for being a successful bidder and Matters need to be dealt with before contract is concluded;
J Summary of clarification, explanation and improvement matters
Article 43 The bid evaluation report requires signatures of all members of the bid evaluation commission. A member of the bid evaluation commission with an objection to evaluation conclusion may set forth his different opinion and reason in writing. If a member of the bid evaluation commission rejects to sign at the bid evaluation report and also to state his different opinion and reason, he shall be viewed as affirmative to the bid evaluation report. The bid evaluation commission shall thus make written statement about and keep it on record.
Article 44 The bid evaluation commission shall be discharged immediately after submitting the written bid evaluation report to the tenderer. The documents, forms and other materials used during bid evaluation shall immediately be returned to the tenderer.
Article 45 The candidates the bid evaluation commission recommends for being a successful bidder shall be limited to one to three persons and the sequence shall be indicated.
Article 46 The bid of the successful bidder shall meet the following conditions:
A it conforms to the greatest possible extent with all of the overall evaluation standards specified in the bidding documents;
B it satisfies the substantive requirements of the bidding documents and its bid price is the lowest among those evaluated, except for bid prices below cost.
Article 47 Until the successful bidder has been determined, the tenderer may not hold negotiations with bidders on substantive contents such as bid price, bid plans, etc.
Article 48 For projects that are funded by the investment of State-owned funds or financed by the State, the tenderer shall determine the candidate ranking first for being a successful bidder as the successful bidder. If the candidate ranking first for being a successful bidder renounces the bid which it has won, lodges its failure to perform a contract by Force Majeure, or fails to furnish the performance security stipulated in the bidding documents within the prescribed time, the tenderer may determine the candidate ranking second for being a successful bidder as the successful bidder.
If the candidate ranking second for being a successful bidder as the successful bidder fails to conclude a contract for the same reason stipulated in the preceding paragraph, the tenderer may determine the candidate ranking third for being a successful bidder as the successful bidder.
The tenderer may authorize the bid evaluation commission to directly determine the successful bidder.
If the State Council has other provisions concerning the successful bidder, such provisions shall prevail.
Article 49 After the successful bidder has been determined, the tenderer shall issue a notification of award to the successful bidder, simultaneously inform the unsuccessful bidders and shall conclude a contract with the successful bidder within 30 working days.
Article 50 The notification of award shall be legally binding on the tenderer and the successful bidder. If the tenderer changes the result of the determination of the successful bidder, or the successful bidder renounces the bid which it has won, after the notification of award has been issued, it shall assume legal liability therefore.
Article 51 The tenderer and the successful bidder shall conclude a written contract according to the bidding documents and the successful bidder's bids. The tenderer and the successful bidder may not subsequently conclude other agreement which contravenes the substantive terms of the contract.
Article 52 The tenderer shall refund the bid security to the successful bidder and the unsuccessful bidders within 5 working days after the tenderer and the successful bidder conclude a contract.
Chapter 6 Penalty Provisions
Article 53 If a member of the bid evaluation commission is absent from duty without leave during bid evaluation, which affect the normal proceeding of bid evaluation procedure, or if a member of the bid evaluation commission fails to perform his duty in an objective and impartial manner, he shall be given a warning; if the circumstances are serious, shall be stripped of his qualifications for membership of bid evaluation commission and may never again participate in the evaluation of bids for projects which legally require the invitation for bids and he may additionally be imposed a fine of not more than 10,000 yuan.
Article 54 If a member of the bid evaluation commission accepts property or other benefits from a bidder, or other persons with material interest or if a member of the bid evaluation commission or working personnel related to the bid evaluation activities discloses to others details of the evaluation and comparison of the bids, the recommendation of candidates for the status of successful bidder or other relevant details of the bid evaluation, he shall be given a warning and the property accepted shall be confiscated, and he may additionally be imposed a fine of not less than 3,000 yuan nor more than 50,000 yuan; a member of the bid evaluation commission who has committed any of the aforementioned acts shall be stripped of his qualifications for membership of bid evaluation commission and may never again participate in the evaluation of bids for projects which legally require the invitation for bids; if a crime is constituted, criminal liability shall be investigated according to law.
Article 55 If the successful bidder determined by the tenderer was not among the candidates lawfully recommended by the bid evaluation commission, or if all the bids for a project which legally requires the invitation for bids have been rejected by the bid evaluation commission but the tenderer subsequently on its own authority determines a bidder to be the successful bidder, the acceptance of the successful bidder's bid shall be void, the tenderer shall be ordered to make amends and may be imposed a fine of not less than 0.5% nor more than 1% of the amount of the project for which it determined the successful bidder; the persons in charge directly responsible and the other directly responsible persons of the unit shall be disciplined according to law.
Article 56 If the tenderer and the successful bidder fail to conclude a contract according to the bidding documents and the successful bidder's bids, or if the tenderer and the successful bidder conclude an agreement which contravenes the substantive terms of the contract, they shall be ordered to make amends and may be imposed a fine of not less than 0.5% nor more than 1% of the amount of the project the bidder won.
Article 57 If the successful bidder fails to conclude the contract with the tenderer, the bid security shall not be refunded and he shall be stripped of his qualifications for being a successful bidder; if the losses caused to the tenderer exceed the amount of the bid security, the successful bidder shall also compensate for the excess; if the successful bidder did not pay a bid security, it shall be liable for compensation of the losses suffered by the tenderer.
If the tenderer delays to determine the successful bidder or fails to conclude the contract with the successful bidder without any justified reason, he shall be given a warning and may be imposed a fine of not more than 10000 yuan according to circumstances; if the successful bidder suffered losses, the tenderer shall also compensate for the losses.
Chapter 7 Supplementary Provisions
Article 58 The bid evaluation activities from outside the projects which legally require the invitation for bids shall be executed with reference to these provisions.
Article 59 Where the bid evaluation activities for a bid project using a loan from an international organization or foreign government or aid funds, and the lender or financier has other provisions in respect of the bid evaluation commission and the bid evaluation methods, its provisions may be applied, unless they are against the public interest of the People's Republic of China.
Article 60 In case of difference between the relevant provisions in respect of the bid evaluation organizations and the bid evaluation methods issued before these provisions come into effect, these provisions shall prevail. If laws or administrative regulations have other provisions, their provisions may be applied.
Article 61 State Development Planning Commission of the People’s Republic of China shall be responsible for the interpretation to these provisions cooperating with departments concerned.
Article 62 These provisions shall come into effect as of the date of their promulgation.
