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Jing Jiao Gong Jian Fa [2020] No. 1

To relevant enterprises in the industry, highway construction and operation entities, highway sub-bureaus, project centers and quota allocation entities,

To standardize the bidding and tendering activities of highway projects in Beijing, improve the management system, and optimize the business environment, we have formulated the Administrative Measures on Handling Complaints in Tendering and Bidding Activities of Highway Projects in Beijing (Trial) (the "Measures")in accordance with the relevant laws and regulations, and in combination with the actual situation of the city. The Measures are hereby issued for your compliance. The National Public Resource Trading Platform (Beijing) is responsible for accepting complaints on tendering and bidding activities of highway projects in Beijing. The telephone number for complaint acceptance is 12328.

The Regulation is hereby given.

Appendix: Administrative Measures on Handling Complaints in Tendering and Bidding Activities of Highway Projects in Beijing (Trial)

Beijing Municipal Commission of Transport

January 22, 2020

Appendix:

Administrative Measures on Handling Complaints in Tendering and Bidding Activities of Highway Projects in Beijing (Trial)

Chapter I General Provisions

Article 1 To regulate the handling of objections and complaints on the bidding and tendering of highway projects in the city, and protect national interest, the public interests, and the legitimate rights and interests of the parties engaged in bidding and tendering, the Measures has been formulated in accordance with relevant laws, regulations and rules such as the Bid Invitation and Bidding Law of the People's Republic of China, the Implementation Regulations on the Bid Invitation and Bidding Law of the People's Republic of China, the Measures for Handling Complaints on Bidding and Tendering Activities of Construction Projects, and the Measures for the Administration of Bidding and Tendering for Highway Construction Projects, and in light of the actual situation of the city's highway engineering industry.

Article 2 These Measures are applicable to the objections and complaints on bidding and tendering activities of highway projects in the city as well as the handling of them. Bidding and tendering activities include tendering, bidding, bid opening, bid evaluation, winning and contract signing.

Article 3 The Beijing Municipal Commission of Transport, as the regulator of the industry, is responsible for handling the complaints on the bidding and tendering activities of highway projects.

Article 4 Where a potential bidder, bidder or any other stakeholder considers that the tendering and bidding activities are not in conformity with the provisions of laws, regulations and rules, it has the right to raise objections to the tenderee according to law, lodge a complaint to the Beijing Municipal Commission of Transport, and file administrative reconsideration or administrative litigation according to law.

Other stakeholders refer to legal persons, other organizations and natural persons other than bidders, who have direct or indirect interests in the project or the bidding activities.

Article 5 Potential bidders, bidders or other stakeholders, when raising objections or complaints, shall abide by the principle of good faith, shall not exclude competitors in the name of complaints, make false or malicious complaints, or obstruct the normal conduct of bidding and tendering activities.

In handling objections and complaints, they shall adhere to the principles of fairness, impartiality and efficiency to safeguard the national interests, the public interests, and the legitimate rights and interests of the parties engaged in bidding and tendering.

Article 6 The tenderee shall publish in the tender announcement and tender documents such information as the contact person, telephone number and address of the person receiving objections or complaints.

Article 7 If the objection or complainant is filed by a natural person, the objection or complaint shall be signed by the natural person and a copy of valid identification shall be attached.

If the objection or complaint is filed by a legal person or any other organization, the objection or complaint shall be signed by the legal representative or the principal in charge and affixed with the official seal. The entrusted agent shall submit the power of attorney, a copy of valid identification, etc.

Chapter II Raising and handling of Objections

Article 8 Where a potential bidder, bidder or any other stakeholder considers that the tendering and bidding activities are not in conformity with the provisions of laws and administrative regulations, it may, if it has any objection to the tender announcement, tender documents, bid opening and bid evaluation results, raise it to the tenderee.

Article 9 A potential bidder, bidder or any other stakeholder that objects to the tendering and bidding activities shall conform to the following time limit requirements:

(1) Any objection to the tender announcement or tender documents shall be raised 7 days before the deadline for submission of bids;

(2) Any objection to the bid opening process shall be raised on the spot;

(3) Any objection to the result of bid evaluation shall be raised during the public announcement period of the winning candidate.

Article 10 Any objection to the tender announcement, tender documents and bid evaluation results shall be raised in writing. The objection shall include the following contents:

(1) The name, address and valid contact information of the person raising the objection;

(2) The project name related to the objection;

(3) The matter of objection, the specific request and the relevant legal basis;

(4) The date on which the objection is raised.

Article 11 The tenderee shall reply to any objection to the bid opening process on the spot and record it. The tenderee shall make a reply to any objection to the tender announcement, tender documents and bid evaluation result within 3 days upon receipt of the objection.

Before making a reply, the tenderee shall suspend the bidding and tendering activities.

Chapter III Raising and handling of Complaints

Article 12 Where a potential bidder, bidder or any other stakeholder considers that the tendering and bidding activities are not in conformity with the provisions of laws and administrative regulations, it may file a complaint to Beijing Municipal Commission of Transport within 10 days after it has known or should know the violation. If an objection is raised, the period for reply to the objection shall not be included.

In case of a complaint concerning the matters provided for in Article 9 of the Measures, an objection shall be raised to the tenderee first. In case of dissatisfaction with the reply to the objection or failure to make a reply within the time limit, a complaint may be filed with the Beijing Municipal Commission of Transport.

Where an objection has been raised, the matter of the complaint shall not exceed the scope of the objection, except that filed on the basis of the reply to the objection.

Article 13 When filing a complaint, the complainant shall submit a letter of complaint.

The letter of complaint shall include the following contents:

(1) Names, addresses and valid contact information of the complainant and the respondent;

(2) Statement of objection and reply to objection and relevant supporting materials (if any);

(3) The basic facts, relevant requests and claims of the complaint;

(4) Necessary legal basis;

(5) Valid clues and relevant supporting materials;

(6) The date on which the complaint is filed.

Article 14 The Beijing Municipal Commission of Transport shall make a decision based on the following scenarios within 3 working days after receiving the complaint.

(1) If the conditions for handling a complaint are met, the commission shall accept the complaint and the date of formal acceptance shall be deemed as the day the complaint is received;

(2) If conditions for accepting the complaint are met, but the complaint does not fall into the category of those handled by the commission, the complainant shall be informed in writing to lodge the complaint with competent administrative supervision authorities;

(3) If the conditions for acceptance are not met, the complaint shall not be accepted and the complainant shall be informed in writing of the reason for the rejection.

Article 15 Complaints under any of the following circumstances shall not be accepted:

(1) The complainant is not a potential bidder, bidder or any other stakeholder, or has no interest involved in the project concerned;

(2) The complaint is not specific with no effective clue provided, which makes verification difficult;

(3) The complaint does not contain the real name, signature and valid contact information of the complainant; where the complaint is filed in the name of a legal person, the letter of complaint has not been signed by the legal representative or the principal in charge nor has the official seal been affixed;

(4) The time limit for filing a complaint is exceeded;

(5) Decision on the complaint has been made and no new evidence has been presented by the complainant;

(6) An objection should have been raised related to the matter of complaint but is not raised, and the complaint has already entered into administrative reconsideration or administrative proceedings.

Article 16 Any staff member of the Beijing Municipal Commission of Transport responsible for handling complaints shall voluntarily avoid involvement in the complaints if:

(1) A close relative of the staff member is the respondent or the complainant, or the principal person in charge of the respondent or the complainant;

(2) The staff member has held a senior management position in the respondent's organization in the past three years;

(3) The staff member has other interest relationship with the respondent or complainant, which may affect the impartial handling of the complaint.

Article 17 When handling a complaint, Beijing Municipal Commission of Transport has the right to consult and copy relevant documents and materials and to investigate the situation, and the organizations and personnel concerned shall cooperate. Investigation and evidence collection shall be conducted by at least two law enforcement officers. A written record shall be kept and shown to the person under investigation for signature confirmation.

The complainant, the respondent, members of the bid evaluation committee and other parties concerned with the complaint shall cooperate with the Beijing Municipal Commission of Transport in the investigation by providing truthful materials and shall not refuse to provide information, conceal facts or make false reports.

When necessary, the Beijing Municipal Commission of Transport may order the suspension of bidding and tendering activities.

Article 18 During the handling of complaints, the Beijing Municipal Commission of Transport shall hear the statement and defense of the respondent, and may, when necessary, notify the complainant and the respondent for cross-examination.

Article 19 The Beijing Municipal Commission of Transport shall, based on the investigation and evidence collected, examine the matter of complaint and make a decision on its handling in accordance with the following provisions:

(1) If the complaint lacks factual or legal basis, or if the complainant fabricates facts, forges materials or obtains documentary evidence by illegal means, the complaint shall be rejected;

(2) If the complaint is true, and there is any illegal act in the tendering and bidding activities, it shall be handled in accordance with the Law of the People's Republic of China on Bid Invitation and Bidding, the Regulations for the Implementation of the Law of the People's Republic of China on Bid Invitation and Bidding, and other relevant laws and regulations.

Article 20 The Beijing Municipal Commission of Transport shall, within 25 working days from the date of receiving the complaint, issue a written decision. The time required for inspection, testing, appraisal and expert review shall not be included. Relevant information of the complaint that has been handled shall be published on the official website of the Beijing Municipal Commission of Transport, including the cause of complaint, investigation result, decision on complaint handling, grounds for punishment and punishment decision.

Article 21 The decision on the handling of the complaint shall include the following main elements:

(1) Names and addresses of the complainant and the respondent;

(2) The complainant's matter of complaint and claim;

(3) The respondent's defense and request;

(4) Basic facts determined by the investigation;

(5) Decision on the handling of the complaint and its basis of the Beijing Municipal Commission of Transport.

Chapter IV Other Methods for Handling Complaints

Article 22 If the complainant still has objections to the handling decision made by the Beijing Municipal Commission of Transport or the complaint is not handled within the time limit, the complainant may apply for administrative reconsideration in accordance with the law. The administrative organ for reconsideration shall speed up the process and take no more than 30 days to make a decision in principle.

Chapter V Supervision and Management

Article 23 In the process of handling a complaint, if the Beijing Municipal Commission of Transport discovers that the person in direct charge of and responsible for the organization that the respondent works in or any other directly responsible person commits any violation of rules or disciplines, the commission shall transfer the person to the administrative authority or the discipline inspection and supervision authority that governs the organization for punishment. If the conduct is serious enough to constitute a crime, the case shall be transferred to a judicial organ for handling.

Article 24 If the complainant intentionally fabricates facts, forges documentary evidence or obtains documentary evidence by illegal means to lodge a complaint, thus causing losses to others, the complainant shall be liable for compensation according to law.

Article 25 Any employee of the Beijing Municipal Commission of Transport who, in the course of handling a complaint, engages in malpractice for personal gain, abuses his or her power, neglects his or her duty, or retaliates against the complainant, shall be given an administrative sanction according to law. If the case constitutes a crime, the suspect shall be investigated for criminal responsibility according to law.  

Article 26 State secrets, trade secrets, personal privacy and information not to be disclosed in accordance with the law that are known in the process of handling an objection or complaint shall be kept confidential by the relevant personnel and the concerned objection and complaint shall not be disclosed to other irrelevant organizations or individuals.

Chapter VI Supplementary Provisions

Article 27 The Beijing Municipal Commission of Transport shall set up files for handling complaints concerning bidding and tendering activities and be subject to supervision and inspection by relevant parties according to law.

Article 28 The letter of complaint shall be written in Chinese. Where a relevant party provides documentary evidence in a foreign language or audio-visual materials of a foreign language, the attached Chinese translation shall be sealed by the translation agency or signed by the translator.

Article 29 The Beijing Municipal Commission of Transport shall not charge the complainant or the respondent during the handling of the complaint.

Article 30 The Measures shall come into force on the date of promulgation.