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Jing Jiao Gong Guan Fa [2020] No. 3

To relevant entities,

To implement the spirit of streamlining the administration, delegating power and improving government services for the ease of doing business, further standardize the bidding management of highway maintenance project in our city, and improve the implementation effect of maintenance project, Beijing Municipal Commission of Transport developed the Administrative Measures on Tenders and Bids of Highway Maintenance Projects in Beijing (the "Measures"). The Measures is hereby issued for your compliance.

Appendix: Administrative Measures on Tenders and Bids of Highway Maintenance Projects in Beijing

Beijing Municipal Commission of Transport
January 22, 2020

Appendix:

Administrative Measures on Tenders and Bids of Highway Maintenance Projects in Beijing

Chapter I General Provisions

Article 1 In order to standardize bidding and tendering activities for road maintenance projects in Beijing, and improve the business environment of highway maintenance market in Beijing, the Measures has been formulated in accordance with the Law of the People's Republic of China on Tenders and Bids, the Regulation on the Implementation of the Law of the People's Republic of China on Bid Invitation and Bidding, the Highway Law of the People's Republic of China, and the Administrative Measures for Tendering and Bidding of Highway Construction Projects unveiled by the Ministry of Transport.

Article 2 The Measures is applicable to bidding and tendering for the survey, design, construction, supervision, etc. of the maintenance projects of the national, municipal and county highways within the jurisdiction of Beijing that are above the tender limits specified by the Provisions for Engineering Projects Subject to Tender (NDRC Decree No. 16) and the Provisions on the Scope of Infrastructure and Public Utility Projects Subject to Tender (Development and Reform Regulations of NDRC [2018] No. 843). Except for cases in which the non-tender methods are allowed according to laws and regulations, the open tender should be adopted.

Article 3 No entity or individual may divide a highway maintenance project legally subject to tender into several small parts or through any other means to avoid the tender. The tender and bid for a highway maintenance project legally subject to tender shall not be subject to territorial or departmental restrictions. No entity or individual shall illegally restrict or exclude the participation of any corporate or unincorporated organizations in the bid, or illegally interfere with the tender and bid in any other means.

Article 4 The tender and bid of highway maintenance projects shall follow the principle of "lower costs, fewer procedures and shorter time", and the market's openness and transparency shall be increased to maximize market openness, popularize electronic bid, minimize bid cost, streamline process, and handle complaints as per procedures.

Article 5 Beijing Municipal Commission of Transport shall be responsible for the supervision and administration of tender and bid for highway maintenance projects in Beijing.

(1) Put on record tender documents, tender and bid reports and other materials;

(2) Supervise the method for determining the members of the bid evaluation committee, the selection of bid evaluation experts, and the bid evaluation according to the division of duties as prescribed;

(3) Investigate and handle violations of laws and regulations in accordance with the law.

Article 6 Electronic tender and bid methods shall be adopted through the whole process for highway maintenance projects. Every procedure such as the tender notice, acquisition of bid documents, bidding, bid guarantee, selection of experts, bid opening, bid evaluation, announcement of winning candidates and announcement of bid results shall be electronized.

Article 7 Tender and bid of highway maintenance projects shall be subject to the unified management of National Public Resource Trading Platform (Beijing). Relevant information such as announcements and notices shall be simultaneously published on the website of Beijing Municipal Commission of Transport in accordance with the rules.

Article 8 Tenderees and other staff participating in bid evaluation activities shall abide by basic ethical norms and professional ethics, conduct bid invitation activities in strict accordance with relevant provisions of laws and regulations, and shall not engage in private informal contact with any bidder or persons with a stake in the bidder. Tenderee representatives and their related staff shall be familiar with the tender business and participate in business training.

Chapter II Tenders

Article 9 Only after a highway maintenance project has obtained relevant approval documents in accordance with relevant provisions and the relevant sources of funds have been determined can the tender activities be organized.

Article 10 A tenderee of a highway maintenance project refers to the project entity that proposes the project and invites the bids, and may entrust the tendering agency to handle the tender matters.

Where the tenderee entrusts a tendering agency to handle the tender matters, the two parties shall sign a written commission contract. No entity or individual may designate a tendering agency for the tenderee in any way, or restrict the way in which the tenderee chooses a tendering agency. The selected tendering agency shall have the relevant professional capabilities of planning tender schemes, preparing tender documents, organizing qualification review and organizing bid evaluation.

The tendering agency shall conduct tender agency business within the scope entrusted by the tenderee. Without the written consent of the tenderee, the tendering agency shall not transfer the agency business. The tendering agency shall abide by the provisions of national laws and regulations and the provisions of the Measures on tenderees.

Article 11 The tenderee shall release the information of the proposed projects subject to tender in a certain period in the future for potential bidders to know and prepare for bidding. For projects legally subject to tender, the tenderee shall prepare a tender plan including the outline of the proposed project subject to tender, the division of sections, the estimated tender time, etc., and publish it at least 10 days before the notice of tender via the state-designated media, and make it public on the website of Beijing Municipal Commission of Transport; and the tender plan shall be updated based on the progress of the project.

Article 12 For tender of highway maintenance projects, post-qualification shall be adopted to review the qualifications of bidders in principle.

Article 13 For tender of highway maintenance projects, the following procedures shall apply:

(1) Prepare tender documents;

(2) Release the notice of tender;

(3) Issue tender documents and disclose key contents of the tender documents;

(4) Accept bid documents and open bids in public;

(5) Establish a bid evaluation committee to evaluate bids, prepare bid evaluation reports, and recommend winning candidates;

(6) Publicize relevant information of winning candidates;

(7) Determine the bid winner;

(8) Send the bid winning notice to the bid winner, and at the same time inform all bidders failing to win the bid of the bid result (including the reason for their failure).

(9) Prepare reports on the status of tender and bid;

(10) Sign a contract with the bid winner;

(11) Announce the contract.

Article 14 The tenderee of a highway maintenance project shall prepare tender documents in accordance with the standard texts formulated by the Ministry of Transport of the PRC or Beijing Municipal Commission of Transport and in light of the specific characteristics and actual needs of the project subject to tender.

The tender documents shall specify the detailed review procedures, standards and methods, and the tenderee shall not formulate review rules separately.

The tender documents shall clearly allow subcontracted or non-subcontracted projects and services; the subcontractor shall meet the qualifications and the management requirements for subcontract implementation; no discriminatory clause on subcontracting is allowed, and subcontracting shall comply with relevant provisions of the state and Beijing municipality.
Article 15 The tender documents of a highway maintenance project that has been released, in principle, shall not be modified. In special cases, the tenderee can make a clarification notice, which shall be simultaneously publicized on the website of Beijing Municipal Commission of Transport.

Article 16 The tenderee shall reasonably divide the bid sections, determine the time limit for construction, put forward the objectives and requirements of quality, safety, comprehensive control of dust pollution, and wage guarantee for migrant workers, and specify them in the tender documents. The division of bid sections shall be conducive to project organization and construction management as well as the integration and coordination of various specialties, and may not be used to avoid tender, restrict or exclude potential bidders.

Article 17 The tenderee shall, in light of the specific characteristics and actual needs of the project subject to tender, reasonably set eligibility requirements for bidders in terms of qualification, performance, key personnel, financial capability and credit for performance of contract, and may not restrict or exclude potential bidders or bidders with unreasonable conditions.

Except as provided for in the Regulation on the Implementation of the Law of the People's Republic of China on Bid Invitation and Bidding of the People's Republic of China, any of the following acts committed by the tenderee shall be deemed as restricting or excluding potential bidders or bidders with unreasonable conditions:

(1) The qualification, performance, key personnel, financial capacity, contract fulfillment reputation and other qualification, technical and commercial requirements set are not compatible with the specific characteristics and actual needs of the project subject to tender or have nothing to do with the performance of the contract;

(2) Legal representatives, the persons in charge of enterprises, technical leaders or any other specific persons of potential bidders or bidders are compulsively required to participate in bid opening in person;

(3) Restrict potential bidders or bidders with no legal or regulatory basis, such as filing, registration or setup of branches, from entering the project site to bid through unreasonable conditions ;

(4) The tenderee, on the basis of any other notice of punishment, sets conditions in the tender documents that disqualify potential bidders or bidders in qualification review, except for entities that are restricted by the administrative supervision and management authority to bid in the administrative areas of Beijing and entities that are deemed as the subject of serious dishonesty.

Article 18 The tenderee shall reasonably determine the number and qualification requirements for the main personnel of bidders and other management and technical personnel in accordance with relevant national regulations and the specific characteristics and actual needs of highway maintenance projects.

For highway maintenance projects with small size and low technical content, the tenderee may appropriately reduce the personal performance requirements for the main personnel of bidders in accordance with the actual situation.

The main personnel in the Measures refer to the persons in charge of project management and technologies, such as the person in charge of design, the chief supervision engineer, the project manager, and the chief project engineer.

Article 19 The tenderee shall strictly abide by the provisions of relevant laws and regulations on the collection of various kinds of bonds, and shall specify the form, amount and time of return of bonds in the tender documents.

The bonds to be paid by the bid winner of a highway maintenance project include: bid bond, performance bond, engineering quality bond, and wage bond for migrant workers. Wage bond for migrant workers shall be subject to relevant regulations of Beijing.

The bonds shall be submitted through National Public Resource Trading Platform (Beijing).
The tenderee shall not, in any name or in disguised form, add bonds or arbitrarily change to the form, amount and time of return of bonds specified in the tender documents.

Article 20 For a highway maintenance project, the bid bond shall not exceed 2% of the estimated price of the bid section. The validity term of a bid bond shall be consistent with the validity term of the bid.

A bank guarantee system shall be implemented for the bid bond of a highway maintenance project subject to tender according to law. However, the tenderee shall not specify or specify in disguised form how the bond is paid, and the bidder shall independently choose the form of payment such bank guarantee, cash or check. If the bid bond paid by a bidder does not meet the requirements of the tender documents, the bidder's bid shall be rejected. The tenderee shall not misappropriate the bid bond.

Article 21 The tenderee shall set a ceiling bid price, but shall not set a floor bid price.
The intermediary working out the ceiling bid price shall not participate in the bid of the project, nor shall it prepare bid documents or provide consultation for bidders of the project.

For a highway maintenance project, the ceiling bid price shall not be higher than the amount of the corresponding part in the approved budget for the preliminary design.
Article 22 Tender documents (including tender drawings) for highway maintenance projects can be obtained online on the National Public Resource Trading Platform (Beijing) or offline for free, and postal services can also be provided.

Chapter III Bids

Article 23 A bidder means a legal person or any other organization that responds to a tender and participates in bid competition.

The bidder shall be capable of undertaking the project subject to tender and have the qualifications as required by the tender documents.

Any legal person or other organization or individual that has an interest relationship with the tenderee and may impair the fairness of the bid shall not participate in the bid.
Entities may not participate in the bid of the same bid section or the same project subject to tender that hasn't been divided into sections, when they are under the charge of the same person, one holds a controlling stake in another or one is in charge of the management of another.

Where any of the preceding two paragraphs is violated, the bid concerned shall be invalid.
Article 24 The information about qualifications, performance, qualifications of major personnel, their current status of in-service and credit rating provided by a bidder in the bid documents shall be identical with the corresponding information submitted and disclosed by the bidder in the credit information management system for highway construction market of the competent departments of transport. The tenderee shall not request the bidder to submit other supporting documents for the information that can be queried in the system.

The bidder shall promptly verify and update the relevant information mentioned above and bear the consequence that his bid may be rejected due to incomplete or inaccurate information.

Article 25 A bidder shall prepare the bid documents according to the requirements of the tender documents, and submit the bid documents to National Public Resource Trading Platform (Beijing) before the deadline for bids specified in the tender documents.

After the bid documents are submitted according to the requirements, the bidder may modify or withdraw the bid documents before the deadline for bids specified in the tender documents.

The bid documents for a highway maintenance project shall be encrypted in double envelopes, the first one shall contain business documents and technical documents, and the second one shall contain quotation documents.

Article 26 A bidder shall clearly state the intention of subcontracting part of the contract-awarded project after winning the bid as per subcontracting provisions of the tender documents. It is not necessary to specify the specific subcontractor in the subcontract plan. The bid winner shall submit the subcontractor's name, qualification level, personnel, equipment and other qualifications and certification materials as well as the subcontract to the owner for approval before implementing the subcontract.

Engineering or services not listed in the subcontract plan in the bid documents shall not be subcontracted after the bidder wins the bid, unless otherwise stipulated by laws and regulations or the tender documents.

Article 27 A bidder shall not bid at an unusually low price that may affect the performance of the contract, nor may they bid in the name of others or resort to deceit in any other way to win the bid.

Chapter IV Bid Opening, Evaluation and Winning

Article 28 Bid opening shall be started openly at the same time of the deadline for submission of bid documents determined in the tender documents. The place of bid opening shall be the place reserved by National Public Resource Trading Platform (Beijing) and specified in the tender documents.

The bid shall not be opened if there are less than three bidders, and in this case, the tenderee shall make a new invitation for bids.

Article 29 For a highway maintenance project, the bid shall be opened electronically on National Public Resource Trading Platform (Beijing) and be presided over by the tenderee; all bidders shall participate or participate online and have the capacity of decrypting the bid documents.

Article 30 Bid opening is conducted in two steps:

The first step is to decrypt the first envelope (business documents and technical documents) for bid opening. The second envelope (quotation documents) shall not be decrypted and will be sealed up for safekeeping by the tenderee on National Public Resource Trading Platform (Beijing);

The second step is to decrypt the second envelope (quotation documents), and announce the list of bidders who have passed the evaluation of the first envelope (business documents and technical documents), and open the second envelope (quotation documents), and announce their bid quotes.

Article 31 Bid evaluation is conducted by the bid evaluation committee established by the tenderee according to law, and shall be carried out electronically through National Public Resource Trading Platform (Beijing).

The bid evaluation committee shall be composed of the representative of the tenderee and experts in the related technological and economic fields, and the number of committee members shall be an odd number at or above five, and it shall meet the needs of professional division of labor. Among them, experts in technology and economics shall not be less than two-thirds of all members. The representative of the tenderee may be a professional of the unit who is familiar with the requirements of the project subject to tender and is familiar with the tender business.

The experts of the bid evaluation committee shall be randomly selected from related profession categories of the bid evaluation expert database for highway construction projects in Beijing, and shall implement the avoidance and confidentiality system in accordance with relevant provisions.

Article 32 The tenderee shall provide the bid evaluation committee with the necessary information for bid evaluation, but shall not favor or exclude specific bidders, either expressly or implicitly.

The tenderee shall not make any comments on the bid documents, deliberately omit or unilaterally extract them, or disclose the names of bidders with deviations before the bid evaluation committee determines the nature of all deviations.

The bid evaluation committee shall, in accordance with the provisions of the tender documents, evaluate all bid documents comprehensively and independently, and verify the relevant information provided by the tenderee. If any errors or omissions are found, they shall correct them.

Article 33 The bid evaluation committee shall evaluate bids in accordance with the bid evaluation standards and methods set in the tender documents. Bid evaluation standards and methods not stipulated in the tender documents shall not be used as the basis for bid evaluation.

For deviations of bid documents, the bid evaluation committee should decide whether such deviations are major deviations or minor deviations according to law. Written errors and omissions of non-critical content in the bid documents shall not be viewed as major deviations, and the relevant bids shall be rejected accordingly.

Article 34 The bid evaluation committee may demand a bidder to make necessary clarifications or explanations on the contents with ambiguous content of his bid documents. However, such clarifications or explanations may not exceed the scope of his bid documents or alter any substantial content of his bid documents.

If the bid evaluation committee finds that a bidder's quotation is abnormally low and may affect the performance of the contract, it shall demand the bidder to make clarifications or explanations within the prescribed time limit, and provide necessary proof materials. Where a bidder cannot prove that it could complete the project at his bid price according to the quality standards and deadline for performance prescribed by the tender documents, the bid evaluation committee shall reject his bid.

Article 35 The tender of survey, design and supervision for a highway maintenance project shall adopt the comprehensive evaluation method to evaluate the bid, score the bidders' business, technical and quotation documents, rank them according to their comprehensive scores from high to low, and recommend winning candidates. The weight of the bid evaluation price shall not exceed 10%. The score of the bid evaluation price shall be calculated according to the deviation between the bid evaluation price and the bid evaluation benchmark price.

Article 36 Reasonable low-price method or technical scoring minimum price method is generally adopted in bid evaluation of highway maintenance projects. However, the comprehensive scoring method may be used for the principal part of extra large bridge or extra long tunnel project involving especially complicated technology.

Article 37 The tenderee shall reasonably determine the time for bid evaluation, based on project size, technical complexity, number of bid documents and other factors. If more than one-third of the bid evaluation committee members consider that the time for bid evaluation is not enough, the tenderee shall extend it appropriately.

Article 38 After the completion of the bid evaluation, the bid evaluation committee shall submit a bid evaluation report to the tenderee via National Public Resource Trading Platform (Beijing). The number of winning candidates recommended in the bid evaluation report shall not exceed three, and the ranking shall be indicated.

Article 39 A tenderee shall, within 3 days from the date of receiving the bid evaluation report, announce the bid-winning candidates on National Public Resource Trading Platform (Beijing) and the website of Beijing Municipal Commission of Transport for a period of not less than 3 days with the last day being a working day. The contents for announcement include:

(1) Ranking, names, tender quotations of the bid-winning candidates;

(2) Names of major personnel, personal performance, numbers of relevant certificates promised by the bid-winning candidates in their bid documents;

(3) Project performance reported by the bid-winning candidates in their bid documents;

(4) Names of the bidders rejected, and basis and reasons for the rejection;

(5) Other contents disclosed as per the tender documents.

Article 40 Unless the tenderee authorizes the bid evaluation committee to directly determine the bid winner, the tenderee shall, according to the rules, determine the bid winner based on the report of the bid evaluation committee and the recommended candidates.

Article 41 The tenderee shall promptly send the bid winning notice to the bid winner and inform all bidders failing to win the bid of the bid result (including reasons for their failure).
The tenderee shall promptly announce the bid result on National Public Resource Trading Platform (Beijing) and the website of Beijing Municipal Commission of Transport and the website of Beijing Municipal Commission of Transport from the date of determining the bid winner. The announcement shall include the bid winner's name and bid price.

Article 42 The tenderee and the bid winner shall conclude a contract in accordance with the tender documents and the bid documents of the bid winner within 10 days from the date of issuance of the bid winning notice. The main terms and conditions of the contract, such as the subject matter, price, quality, safety, environmental protection, wages of migrant workers, deadline for performance and key personnel, shall be consistent with the contents in the above-mentioned documents. The tenderee and the bid winner may not conclude any other agreement contrary to the substantial contents of the contract.

The tenderee shall return the bid bonds to the bidders other than the winning candidates within 5 days after issuing the bid winning notice, and to the bid winner and other winning candidates within 5 days after signing the contract with the bid winner. For bid bonds submitted in the form of cash or checks, the tenderee shall also refund the bank interest on demand deposits for the corresponding period.

Article 43 If the tender documents require the bid winner to provide a performance bond, the bid winner shall provide it according to requirements of the tender documents. The performance bond shall not exceed 10% of the amount of the contract awarded. A bank guarantee system shall be implemented for the submission of a performance bond.

However, the tenderee shall not specify or specify in disguised form how the bond is paid, and the bid winner shall independently choose the form of payment such as bank guarantee, cash or checks.

Article 44 The tenderee shall strengthen the management of the performance of the contract and establish an assessment system for arrival rate of key personnel of the bid winner.

In addition to the force majeure, the key personnel such as the chief supervision engineer, project manager and chief project engineer promised by the bid winner in the bid documents shall not be replaced.

Beijing Municipal Commission of Transport shall regularly organize and implement the supervision and inspection of the contract performance evaluation. Meanwhile, the inspection results shall be announced publicly and recorded into both credit files of the bid winner and its key personnel.

Chapter V Supervision and Management

Article 45 Beijing Municipal Commission of Transport shall strengthen the supervision of tendering and bidding activities for highway construction projects in accordance with the laws, regulations and rules, such as the Law of the People's Republic of China on Tenders and Bids, the Regulation on the Implementation of the Law of the People's Republic of China on Bid Invitation and Bidding, and division of duties for administrative supervision of tendering and bidding activities.

Article 46 Beijing Municipal Commission of Transport is responsible for the building of the credit system for tendering and bidding of highway maintenance projects, strengthening the supervision and management of credit evaluation, and maintaining a fair and just market competition order.

The tenderee shall use the credit evaluation result in the tender for the highway maintenance project. The tenderee is encouraged and supported to give preference to enterprises with a high credit rating.

For bidders or a bid winner with a high credit rating, the tenderee may adopt some preferential policies, such as reducing or exempting bid bonds, and reducing performance bonds and quality bonds. Such preferential policies and the conditions for determining the credit evaluation results shall be specified in the tender documents.

Article 47 The tenderee shall prepare reports on the status of tendering and bidding in a timely manner in accordance with the regulations.

Article 48 The management of tender and bid complaints for a highway maintenance project shall be implemented in accordance with the Administrative Measures on Complaints Handling for Tendering and Bidding Activities of Highway Engineering in Beijing.

Article 49 Where the parties pertaining to tendering and bidding, such as the tenderee, the tendering agency, the bidders, members of the bid evaluation committee and so on, violate provisions of the Law of the People's Republic of China on Tenders and Bids, the Regulation on the Implementation of the Law of the People's Republic of China on Bid Invitation and Bidding, and relevant regulations on tenders and bids stipulated by the Ministry of Transport of the PRC and Beijing Municipality, Beijing Municipal Commission of Transport shall impose strict penalties according to law.

Article 50 If the staff of the supervision authorities use their powers to illegally interfere or infringe on the autonomy of the tenderee, the administrative personnel directly in charge and other personnel held accountable shall be given administrative sanctions.
Chapter VI Supplementary Provisions

Article 51 Management of tender and bid activities for other similar maintenance projects may be implemented by reference to the Measures.

Article 52 The Measures shall be implemented as of the date of promulgation. The Administrative Measures on Tenders and Bids of Highway Maintenance Projects in Beijing (Trial) (Jing Jiao Gong Guan Fa [2019] No. 5) is annulled simultaneously.