Sui Jiao Yun Gui Zi[2020] No. 14
Notice of Guangzhou Municipal Transportation Bureau onthe Issuance of Implementation Rules for the Administration of Tenders and Bidsfor Ordinary Road Maintenance Projectsin Guangzhou
To the Guangzhou Municipal Road Maintenance Center, Guangzhou Public Resources Trading Center, and the transportation bureaus of Huangpu District, Huadu District, Panyu District, Nansha District, Conghua District and Zengcheng District:
In order to regulate tenders and bids for ordinary road maintenance projects andfurtherimprove the business environment, market order and government oversight procedures for ordinary road maintenance in Guangzhou, the Guangzhou Municipal Transportation Bureau has formulated the ImplementationRules for the Administration of Tenders and Bids for Ordinary Road Maintenance Projects in Guangzhou, which are hereby issued for your due implementation.
This notice is hereby issued.
Guangzhou Municipal Transportation Bureau
July 29, 2020
Implementation Rules for the Administration of Tenders and Bids for Ordinary Road Maintenance Projectsin Guangzhou
Chapter I General Provisions
Article 1 These Implementation Ruleshave been formulated based onthe PRC Law for Tenders and Bids, theImplementation Regulations for thePRCLaw for Tenders and Bids,the PRC Highway Law, and the Measures for the Administration of Tenders and Bids for Road Engineering and Construction Projects, Measures for the Administration of Road Maintenance Projects,Measures for the Administration of Road Maintenance in Rural Areasissued by the Ministry of Transport, the Guangdong Provincial Measures for Implementing the PRC Law for Tenders and Bids,and other relevant laws and regulations, to regulate tenders and bids for ordinary road maintenance projects and further improvethebusiness environment, market order and government oversight procedures for ordinary road maintenance in Guangzhou.
Article 2 In these Implementation Rules,ordinary road maintenance projects refer to projects for the restorative, preventive, or special maintenance of toll-free ordinary state, provincial or county roads that do not alter the alignment and width of the road concernednor involve land acquisition and demolition and resettlement. Ordinary road maintenance projects do not include road reconstruction, extension or routine maintenance projects.
Article 3 These Implementation Rulesare applicable to tenders and bids related to the surveying, design, constructionworksor management of ordinary road maintenance projects within the administrative jurisdiction of Guangzhou and above the threshold set for the initiation of bidding by the Provisions on Engineering Projects Requiring Tendersand the Provisions on the Scope of Infrastructure and Public Utility Projects Requiring Tenders. Except where relevant laws and regulations stipulate otherwise, all projects shall be awarded through public tender.
Article 4 No organization or individual is permitted to circumvent the bidding process for an ordinary road maintenance project where such process is required pursuant to law by means of breaking the project down into smaller parts or by any other means.
Bidding activities for an ordinary road maintenance project requiring the public bidding process are not restricted by region or sector. No organization or individual shall illegally restrict or exclude the participation of any juridical or non-juridical person in such bidding activities or otherwise interfere with tender or bidding activities.
Article 5 Tenders and bidsfor ordinary road maintenance projects shall comply with the principles of openness, fairness, impartiality, honesty and credibility to enhance the level of market openness and transparency, with a view to opening up the market to the maximum extent, electronizing the tendering and bidding process, minimizing the cost of bidding, simplifying the bidding process,and proceduralizing complaint procedures.
Article 6Guangzhou Municipal Transportation Bureau is responsible for supervising and managing the tendering and bidding activities for ordinary state and provincial road maintenance projects within the administrative jurisdiction of Guangzhou. Relevant district transportation administrative departments are responsible for supervising and managing the bidding activities for ordinary county, township or other rural road maintenance projects within their respective territories. Supervision and management work include the following:
(i) abolishing the requirement for pre-filing of bidding documents and tighteninginterim and post supervision for bidding activities;
(ii) filing and managingbidding documents such as tendering and biddingsituation reports;
(iii) supervising methods for determiningmembers of bid evaluation committees, the selection of bid evaluation experts,and bid evaluation activities as per defined roles and responsibilities;
(iv) investigating and dealing withacts in violation of laws or regulations that arise during tendering and bidding activities;
(v) other supervision and management work with respect to bidding activitiesas required by laws and regulations.
Article 7All tendering andbidding activities for ordinary road maintenance projects shall be conducted electronicallyand managed in a standardized mannerthrough the public resources trading platform. The issuance of bidding notices, receipt of bidding documents, submission of bids, submission of bid securities, selection of bid evaluation experts, opening of bids, evaluation of bids, lodging of complaints, announcement of candidate lists, announcement of bid results, notification of the award of bids, signing of contracts, payment of contract prices, and disclosure of project implementation shall be conducted electronically.
Article 8 Tenderees and other personnel involved in the bidding activities shall comply with basic ethical guidelines and professional ethics,and conduct alltender activities in strict accordance with relevant laws and regulations. They shall not engage in any informal contact with any bidding partyoranyother person who has a stake in the bidding party. Representatives of the tenderees and their staff members should be familiar with the bidding process and participate in relevant training.
Chapter II Call for Bids
Article 9 Callsfor bids with regard to an ordinary road maintenance project shall be initiated only after approval documentsfor the project have been received as perrelevant regulations and relevant funding sources for the projecthave beensecured. Calls for bids in relation to a construction projectshall be initiated only after construction drawings and budget approval documents have been received.
Article 10 Tenderees for ordinary road maintenance projects refer to legal persons or other organizations proposing projects calling for bids and conducting calls for bids. Matters relating to tendering may be entrusted to tendering agencies.
Wherea tenderee entrusts the tendering process to a tendering agency, both the tenderee and the tendering agencyshall sign a written authorization contract. No organization or individual may by any means designate any tendering agency to a tenderee or impose restrictions on the methods whereby a tenderee selects a tendering agency. A tendering agency selected by a tenderee shall have the professional competences to make tendering plans, prepare tender documents, organize eligibility reviewsand organize bid evaluations.
Atendering agencyshall conduct tendering activities on behalf of the tenderee asper the terms of reference defined by the tenderee. The tendering agency shall comply with the provisions of laws, regulations,and these Implementation Rulesgoverning the conduct of tenderees when conducting such activities.
Article 11 Tendereesshall, based on the specific nature of projects and relevant budget arrangements, formulate sound tendering plans for a specific period, which shall be disclosed on the public resources trading platform and the official website of transportation administrative departments, and regularly updated based on project progress, in order to allow potential bidding partiesto be timely informed and prepare their bids.
Tenderingplans released on a yearly basis shall include the names, main engineering requirements, total investment estimates,and the construction and installation costsof the relevant projects. Plans shall be released within 30 days of the approval of the annual sectoral budget.
Tenderingplans released on a project-by-project basis shall include project overviews, division of relevant project sections, and anticipated bidding schedules for all projects concerned. Theseplans shall be disclosed at least 10 daysprior to public notification of the start of the first bid.
Article 12 With regard to ordinary road maintenance projects, the qualifications of bidding partiesare, in principle, not reviewed prior to the start of tendering. Such qualifications may be reviewed after the bidding process.
Article 13 Tenders related to ordinary road maintenance projects shall proceed as follows:
(i) preparation of tender documents;
(ii)issuance of tender notices and tender documents;
(iii) acceptance of bidding documents and open bidding;
(iv) establishment ofabiddingevaluation committee to evaluatebids, draftbid evaluation reports and recommend shortlisted biddingcandidates;
(v) public disclosure of relevant information on shortlisted candidates;
(vi) identification of successful bidding parties;
(vii)drafting of tendering and bidding situation reports;
(viii)issuance of tender award letters. Unsuccessful bidding parties shall also be informed of tendering outcomes (including reasons for rejecting their bids);
(ix)conclusion of contracts with successful bidding partiesand disclosure of relevant informationconcerning the contracts.
Article 14Tenderees shall prepare tender documentsaccording to standardized templates provided by transportation administrative departmentsand based on the specific nature and actual needs of the project.
Tenderdocuments shall include details on the procedures, criteria and methods for evaluating bids. Tendereesmay not otherwise formulate bid evaluation rules.
Tenderdocuments shall specify the worksand services that may and may not be sub-contracted, required qualifications for sub-contractorsand requirements pertaining to the management of sub-contracting. Tenderdocuments may not include discriminatory clauses with respect to sub-contractors. Sub-contracting shall comply with the relevant regulationsof the state, Guangdong Province and Guangzhou Municipality.
Potentialbidding partiesmay access, without charge, tender documents and drawings either electronically through the public resources trading platform or through physical channels.
Article 15 Tender documents for ordinary road maintenance projects already issued by tenderees shall in principle not be revised. In exceptional circumstances, the tenderees may issue clarification notices on the public resources trading platform pursuant to relevant provisions in the PRC Lawon Tenders and Bids.
Article 16 Tenderees shall reasonably divide project sections,determine project schedules, and put forth requirements pertaining to quality, safety, fugitive dust control and workers’ wages, which shall be clearly indicated in tender documents. The division of projects into sections shall account for the specific nature and actual needs of the project concerned, and should be conducive to project organization and management of construction works, and connectivity and collaboration between various specialties. Tenderees shall reasonably determine requirements pertaining to the qualifications, track record, key personnel, and financial standing and credibilityof the bidding parties.Projects shall not be divided into sections for the purpose of circumventing tendering requirements, nor shall unreasonable requirements be imposed to restrict or exclude the participation of bidding partiesor potential bidding parties.
Apart fromcircumstancesspecified in the Implementation Regulations for the PRC Law for Tenders and Bids, any of the following acts on the part of a tenderee constitutes an act of restricting or excluding bidding partiesor potential bidding partiesby means of imposing unreasonable requirements:
(i) whererequirements pertaining to the qualifications, track record, key personnel, or financial standing and credibility of bidding parties, etc.. or technical and commercial requirements, are inconsistent with the specific nature of the tendered project or unrelated to contract performance;
(ii)mandating that specific personnel such as the legal representatives, corporate principals, or technical personnel in charge of a bidding partyor potential bidding partyparticipate in the launch of bids in person;
(iii)where bidding partiesor potential bidding partiesare restricted from entering project sites for the purpose of bidding by imposing unreasonable requirements with no legal or regulatory basis, such as requirements related to filing, registration, incorporation, or establishment of branches;
(iv) wheretenderees impose conditionsin tender documentsthat deny bidding partiesor potential bidding partiesthe possibility of passing qualification review on the basis of penalty notices, except whether such bidding partiesor potential bidding partieshave been identified as having engaged in acts of severe discredibility by a relevant administrative supervision department.
Tenderees may not require bidding partiesto provide relevant documentary proof with regard to itemsthat may be verified through government websites such as the National Enterprise Credit Information Publicity System, such as business licenses and proof of qualifications.
Article 17Tenderees shall, pursuant to relevant state regulations and based on the specific nature and actual needs of relevant road maintenance projects, set reasonable requirements pertaining to the key personnel and the number and qualificationsof other managerial and technical personnel of bidding parties.
With regard tosmall road maintenance projectsthat require a lower level of technical expertise, such as road surface restoration and preventive maintenance projects, tenderees may appropriately lower requirements pertaining to the track record of the key personnel of bidding parties based on the actual situation.
In theseImplementation Rules, “key personnel” refer to project administrators and technical personnel in charge, such as managers, chief supervisory engineers, project managers and chief engineers.
Article 18 Tenderees shall, pursuant to law, collect required security deposits. Tender documents shall specify the amount thereof, date of refund, circumstances where security deposits shall not be refundedand liabilities for late refunds.Security deposits to be furnished by a successful bidding partyfor an ordinary road maintenance project shall include: biddingsecuritydeposit, project quality securitydeposit, contract performance securitydeposit, and migrant workers’ wages securitydeposit. In particular, it is recommended that contract performance security deposits be replaced by credit ratings, while migrant workers’ wages securitydepositsshall be subject to relevant regulations issued by Guangzhou Municipality.
Tenderees may not impose restrictions on how security deposits are furnished. Bidding partiesmay freely determine means for furnishing security deposits, including by cash, check, money orders, promissory notes or letters of guarantee. Tenderees may notrequire security deposits for other items through any pretext or guise, nor arbitrarily alter terms for the collection, amount, and refund of security deposits that have been stated in tender documents.
Article 19 Bid security for an ordinary road maintenance project shall not exceed 2% of thetendered project sectionor CNY 800,000, whichever is lower. The valid period of the bid security shall be the same as that for the bid.
Tenderees may not misappropriate bid securities.
An electronic letter of guarantee systemshall be implemented with regards to bid securities, where such letters of guarantee shall be submitted through the public resources trading platform.
Article 20 Tenderees may impose a bid ceiling, but not a price floor, for bids.
Agencies orentities that determine the bidceiling shall not participate in bidding for the relevant project, assist a project bidding partyin preparing bidding documents or providea project bidding partywith any advice.
Thebid ceiling for an ordinary road maintenance project shall not exceed the amount of funds available for the project under the approved budget.
Article 21 Tenderees shall reasonably determine the length of time required by bidding partiesto prepare their bids.
With respect to an ordinary road maintenance project, the duration from the date of issuance of thetender documents to the closing date for bid submissionsshall be no less than 20 days. However, this duration may be reduced for an ordinary road maintenance projectinvolving relatively simple construction plans,shorter construction schedulesand of a seasonal nature.
Where state or higher-level transportation authorities have issued otherprovisions regarding maintenance projects involving special circumstances, such as emergency maintenance projects, such provisions shall prevail.
Chapter III Submission of Bids
Article 22 Bidding partiesare legal persons or other organizations that respond to a call for bids and participate in a competitive bidding process.
Bidding partiesshall meet the eligibility conditions stated in relevant tenderdocumentsand have the relevant expertise to undertake projects bid for.
Legal persons, other organizations,or individuals that have a stake in the tenderee, and may thereforeadversely affect the impartiality of the tendering process,may participate in bidding.
Differententities whose principals are the same person, or different entities with a controlling stake or managerial relations with one another,may not simultaneously bid for the same projectsection or the same project.
Bids in contraventionof the two preceding paragraphs, shall bedeemedinvalid.
Article 23 Information reported by the bidding partiesin relation to their bids, including their qualifications, track record, credentials and current employment of key personnel,and credit ratings, shall be consistent with information they have completed and released through transportation development market credit information management systemsadministered by transportation administrative departments. Tenderees may not require bidding parties to provide documentary proof pertaining to information that may be retrieved through the said system.
Bidding partiesshall timely verify and update the above-mentioned publiclydisclosed information. Bidding parties shall bear corresponding liabilities related to the possible rejection of their bids due to the provision of incomplete or inaccurate information.
Article 24 Bidding partiesshall prepare their bids as perrequirements laid out in the tender documents, respond to the material requirements and conditions stated in the tender documents, and submit their bids to the public resources trading platform before the closing date for bid submission.
Where tender documents require bidding partiesto provide bid security, bidding parties shall furnish such security asper the amount and deadline stipulated in the tender documents. Where bidding parties opt to furnish bid security in the form of cash or check, relevant moniesshall be transferred from their primaryaccounts.
Bidding documents shall be double sealed intwo envelopes, with the first envelope containing commercial and technical documents,and the second envelope containing quotation documents.
Article 25 After bids have been submitted as required, bidding partiesmay revise or withdraw their bids, provided that they do so before the closing date for bid submissions indicated in the tender documents.
Wherea bidding party has already furnished bid security to the tenderee but withdraws its bid before the closing date for bid submission, the tenderee shall refund the bid security within 5 days of receiving a written notice of bid withdrawal from the bidding party.
The tenderee may decline to refund bid security in the case where a bidding partywithdraws its bid after the bid submission deadline.
Article 26 In cases where a bidding partyintends to sub-contract part of the work for the project bid for,as per relevant termsof the tender documents relating to sub-contracting, such intentions shall be clearly indicated in bidding documents.Before actual sub-contracting, successful bidding parties shall file the names, levelsof qualifications, personnel, equipment, and other documentary evidence of the qualifications and competences of the sub-contractors, as well as sub-contracting agreements, with the tenderee for their review.
Oncea tender has been awarded, the bidding partymay not sub-contract work or services that are not listed in the sub-contracting plansincluded in their submitted bids, unless otherwise allowed by relevant laws, regulations or the tender documents.
Article 27 Biddingparties may not submit abnormally low bids that may adversely impact the performance of a contract,submit bids in the name of another entity or person, or obtain a tender via any other fraudulent means.
Chapter IV Opening, Evaluation and Award of Bids
Article 28 Public bid opening shall commenceat the same time as the closing datefor submissions stipulated in the tender documents at a venue determined in advance by the same.
Wherethere are less than 3 bidding parties,there shall be no public bid opening, and tenderees shall initiate a new tendering process.
Article 29 Public bid opening for ordinary road maintenance projectsshall be conducted electronically throughthe public resources trading platformand presided over by the tenderee. All bidding parties should be presentwhen the first envelopes are opened to ensure thatrequirements for declassifying bidding documents are satisfied.
Article 30 Public bid opening shall consist of two steps:
In the first step,commercial and technical documents contained in the first envelopethat have been successfully declassified shall bedisclosed. The contents of the second envelope shall remain confidential.
In the second step,the list of bidding partieswhose commercial and technical documents have passed review shall be announced. Their quotation documents contained in the second envelopes shall be declassified and their quotations shall be publicly announced. The second envelopes of the bidding partieswhose commercial and technical documents failed to pass review will not be opened.
Article 31 Evaluation of bids shall be undertaken by a bid evaluation committee established by the tenderee as pursuant tolaw. Bidevaluationsshall be conducted electronicallyon the public resources trading platform.
Abid evaluation committee shall be comprised of representatives of the tendering party and relevant technological and economic experts,and have an odd number of more than five memberswho shall meet relevant requirements regarding diversity in relevant specialties. In particular, technological and economic experts shall account for no less than two thirds of the totalnumber ofmembers, while representatives of the tendering party shouldbe professionals familiar with the particular needs of the tendered project and the tendering process.
Experts on the bid evaluation committee shall be randomly selected, in accordance with relevant laws,through the public resources trading platform from a pool of bid evaluation experts. Recusal and confidentiality systems shall be implemented as required by relevant regulations.
Article 32 Tenderees shall provide the bid evaluation committee with all information necessary for the evaluation of bids. However, tendereesmay not explicitly or implicitly express any intention to favor or exclude particular bidding parties.Tenderees may not make any appraisal as regards any bidding document, deliberately omit or extract any part of a bidding document out of context, or disclose the identities of any bidding parties,before the bid evaluation committee enters into any determination regarding deviationsin bidding documents.
Bid evaluation committeesshall thoroughly and independently evaluate all bids based on the terms of tender documents and verify the relevant information provided by the tenderees.Revisions shall be made if errors or omissions arediscovered.
Article 33 Bid evaluation committeesshall evaluate bids based on the evaluationcriteria and methods set out in tender documents. Evaluation criteria and methods not stipulated in tender documents may not form the basis for evaluating bids.
With respect to deviations in bidding documents,the bid evaluation committee shall determine, pursuant to law,if such deviations are major deviations or microscopic deviations. Bid evaluation committees may not regard errors or omission in the wording of a bidding document unrelated to key content as major deviationsand reject bids on this basis.
Article 34 Bid evaluation committees may require bidding parties to clarify or explain, as necessary, ambiguous content in submitted bids. However, such clarifications or explanations may notexceed the scope of the bid or substantively alterthecontent of the bid. Clarifications and explanations should be provided in writing.
Where a tender document stipulates that bidding parties must provide a reasonable explanation for quotations lower by a certain percentage than the bid ceiling set by the tenderee,thebidding partyshall furnish a reasonable explanation for the difference and submit relevant documentary proof. Bid evaluation committees will give priority to reviewing abnormal quotations. In the event that the bid evaluation committee determines that a quotation is abnormally low, the bid may be rejected.
Article 35 With respect to tendering for services for ordinary road maintenance projects, such as project surveying, design and management, a comprehensive approach shall be adopted in the evaluation of submitted bids. Commercial, technical and quotation documents submitted by bidding partiesshall be scored and ranked in descendingorder, and successful bidding partiesshall be recommended based on suchranking.In general,a weightage of 10% shall be accorded to bid quotations.
Article 36 With regard to tendering for ordinary road maintenance works, the evaluation of bids shall generally adopt the “reasonable low quotation approach” or the “lowest evaluated bid quotationapproach”. For the principal part of particularly large bridge or tunnel projects, or projects where bridges and tunnels account for a relatively large percentage (≥35%), the comprehensive scoring approach may be adopted.
The“lowest evaluated bid quotation approach” is applicable only to projects that have adopted uniformtechnical and project specification standards, or wherethe tendereeimposes no special requirements on technical requirements and project specifications.
Article 37 In the case that an ordinary road maintenance project adopts general contracting and tendering for project design and construction works, bidevaluations shall generally adopt a comprehensive scoringapproach.Factors to be scoredinclude final awarded price, project management firms, technicalcompetences, suggested revisions to optimize design documents, plans for managing design and construction general contracting, and construction organization and designs.Weightage of the final awarded price shall be no less than 50%.
Article 38Tenderees shall reasonably determine the duration of bid evaluation in consideration of factors such as project scale, technical complexity, and number of bidding documents. Tenderees shall appropriately extend bid evaluation durations if more than one third of the members of the bid evaluation committee feel that inadequate time has been allotted.
Article 39 Upon completion of bid evaluation, the bid evaluation committee shall submit a bid evaluation report to the tenderee through the public resources trading platform. The contentsof the bid evaluation report shall be as specified by relevant regulations.No more than three successful bidding candidates shall be recommended in a bid evaluation report. Candidates shall be clearly ranked in order of preference.
Article 40 Tenderees shall publicly announce successful bidding candidates through the public resources trading platform,within 3 days of receivingthe bid evaluation report,for a period ofno less than 3 days. The content of such announcementsshall include:
(i)ranking, names,and bid quotationsof successful bidding candidates and their construction schedules, and quality and safety goals;
(ii)namesandpersonal track record of key personnel indicated by successful bidding candidates in bidding documents, and serial numbers of relevant certificates;
(iii)track record ofsuccessful bidding candidates, as provided in their bidding documents;
(iv)names ofrejected bidding parties, and the grounds and reasons for rejecting their bids;
(v)channels and methodsfor raising objections;
(vi) other content required to be disclosedby the tender documents.
Article 41 Except where tendereesauthorize the bid evaluation committee to directly identify successful bidding parties, tenderees shall, pursuant to relevant regulations,determine successful bidding partiesbased on bid evaluation reports and recommendedlists of successful bidding candidates from the bid evaluation committee.
Article 42 Tenderees shall issue a notice of award to successful bidding partieswithin 7 days of determining successful bids and publicly announce bidding outcomes on the public resources trading platform. Such announcements shall include the name and bid quotations of successful bidding parties. In addition, bidding outcomes shall be communicated to all unsuccessful bidding parties.
With respect tobidding partieswhose bids have met requirements stipulated in tenderdocuments, tenderees shall inform them of their scores and rankings. For unsuccessful bidding parties, tenderees shall inform them of the reasonsfor the rejection of their bids. With respect to the bidding partieswhose bids have been disqualified, tenderees shall inform them of the underlying reasons.
Article 43 In principle, tenderees and successful bidding partiesshall conclude contracts pursuant to the tenderdocumentsand bidding documents submitted by successful bidding partieswithin 7 days of the issuance of the notice of award. The terms of such contracts shall be consistent with the terms of foregoing documents with respect to matters related to the project matter, prices, unit prices, quality, safety, environmental protections, workers’ wages, schedules, and key personnel. Relevant terms of these contracts shall be also be publicly disclosed by the tenderee through the public resources trading platform. Tenderees and successful bidding parties may not enter into any other agreements that contravene the substantive terms of these contracts.
Tenderees shall,at the latest,refund bid securityto all bidding parties other than shortlisted candidateswithin 5 days of issuing the notice of award. Bid security shall be refunded to both the successful bidding party and other shortlisted candidates within 5 days of concluding a contract with the successful bidding party. With respect to bid security furnished in cash or by check, tenderees shall simultaneously refund the commercial bank demand deposit interest for the said bid securityduring the same period.
Article 44 Performance of contractsfor ordinary road maintenance projects shall specify the percentages, schedules, and procedures for the payment of contract prices.
Tenderees shall make advance payment to successful bidding partieswithin 30 days of the signing of contracts. Advance payments shall generally amount to 10% of the contract price, and be no greater than 30% of the contract price.
With respect to payment procedures,successful bidding parties should issue official invoices in a timely mannerafter reporting the completion of relevant construction works, verification and confirmation of the same, and the submission of required payment requests. Tenderees should make payment within 15 days (excluding statutory holidays) upon receiving such invoices.Where such payments are to be made by fiscal authorities, such fiscal authorities shall make paymentswithin 7 days (excluding statutory holidays) upon receiving applications and relevant documents that meet all relevant payment requirements.
Article 45 Quality guarantee depositsretained for ordinary road maintenance projects may not greater than 3% of the total project settlement price.
Furnishment of a quality guarantee depositmay be through retention of project settlement payments or in the form of a letter of guarantee issued by a bank. Where project settlement payments are retained, relevant monies shall be paid out upon the endof the defects notification period (generally one year). Where letters of guarantee issued by a bank are accepted in lieu of retention of project settlement payments, the amount guaranteed may not exceed 3% of the total project settlement payment.
Article 46 Tenderees shall tighten the management of contract performance.Tenderees shall, at the end of the months of May and December, collate the outcomes of tenders for ordinary road maintenance projects and the performance of related contracts, which shall be publicly disclosed through the official websitesof transportation administrative departmentsand the public resources trading platform.
Exceptin circumstances of force majeure, successful bidding parties may not make changes to the key personnel specified in their bidding documents. Where such changes are inevitable, successful bidding parties shall appoint replacement personnel with qualifications no lower than those stated in their bidding documents, and report such replacements to the tenderee in writing for their approval.
Chapter V Handling of Complaints
Article 47 Potential bidding parties, bidding parties, or other stakeholders may make their opinions known to the tenderee if they believe that bidding activities are in contravention of laws or regulations or if they disagree with callsfor bids, bidding documents, public bid openings, or the results of bid evaluations.
“Other stakeholders”refer to legal persons, other organizations or natural persons, other than the bidding party, that have a direct or indirect interest in the tendered project.
Tenderees or tenderingagencies should, in tender announcements and tender documents,publicly list the contact persons, contact numbers,and correspondence addressesof personnel to whom complaints or dissenting opinions should be directed.
Article 48 Dissentingopinions regarding tender announcements, tender documents, or bid evaluation outcomes should be submitted in writing and lodged through the public resources trading platform. Such documents should include the following:
(i)name, address andvalid contact of the dissenting party;
(ii) the name of the projectdissented to;
(iii)matters of dissent, clear requests in relation thereof, and relevant legal and regulatory grounds;
(iv)date ofdissent.
Tendereesshall respond within 3 days of receiving such dissent. Prior to such response, tenderingandbidding activities shall be temporarily suspended.
Article 49 Where a bidding partyobjects to public bid opening, they shall raise such objections at the venue of such public bid opening. Tenderees shall provide an on-site response, which shall be recorded accordingly. Bidding partiesthat do not participate in public bid opening shall be deemed tohave no objections to the bid opening process.
Article 50 Wherebidding parties, potential bidding partiesand other interested parties believe that the bidding activities are in contraventionof relevant laws oradministrative regulations, they maylodge complaints directly,or through the public resources trading platform,torelevant transportation administrative departments within 10 days of becoming aware if such violations or within 10 days of the date when they should have been aware of such violations. Complaints should includeexplicit requests for remedy and necessarydocumentary evidence.
When making a complaint,acomplainant shall submit a letter of complaint, which include the following:
(i)names, addresses andvalidcontact methods of the complainants and the respondents;
(ii)basic facts of the matterof complaint;
(iii)raising of dissenting opinion and reply from the tenderee;
(iv)relevant requests and claims;
(v) effectiveleads and related evidence;
(vi) the date of complaint.
Where a complaint is lodged regarding matters specified in Article 47 of theseImplementation Rules, a dissenting opinion should have first beenlodged with the tenderee. In the event of dissatisfaction with the reply from the tenderee regarding the dissenting opinion, a complaint maybe lodged with the relevant transportation administrative department. Transportation administrative departments may decline to review a complaint if a dissenting opinion was not lodged as per regulations or if a complaint is not accompanied by documentary proof that a dissenting opinion has been lodged.
Article 51 Where a complainant is a natural person, the letter of complaint shall be affixed with his or her signature and accompanied by a photocopy of hisor her valid personalidentification. Where a complainant is a legal person or other organization, the letter of complaint shall be signed by its legal representative, principal or authorized representative, and affixed with its official seal.
In the case that a letter of complaint is lodged by aconsortiumparticipating in tendering and bidding activities, the letter of complaint shall be lodged by all suppliers comprising the said consortium.
Article 52 Wherea complainant simultaneously lodges a complaint pertaining to the same matter to two or more transportation administrative departments authorized to review complaints, the complaint shall be reviewed by the transportation administrative department which first receivedthe complaint.
The transportation administrative department responsible for handling complaints shalldecidewhether or not toofficially accept a complaint within 3 working days of receiving the said complaint. Wherethe department decides to accept the complaint, the complaint shall be deemed to have been officially accepted on the date of receipt of the letter of complaint. Where a complaint falls outside the purview of the department, the department shall advise the complainant in writing to lodge the complaint with other relevant administrative oversight departments.
Article 53 Transportation administrative departments shall have the right to review and duplicate relevant documents and materials,and investigate relevant matters when handling complaints. Relevant entities and individuals shall cooperate as required.
Investigation and evidence collection by a transportation administrative departmentshall be conductedby two or more administrative law enforcement personnel. Notes shall be recorded as per regulatory requirements and such notes shall be duly affirmed in signature by parties under investigation.
Personnel of transportation administrative departments shall, pursuant to law,not divulge anystate or trade secrets that come into their knowledge during the oversight and investigation process.
Article 54 Transportation administrative departments shall make a written decision on the outcome of a complaint within 30 working days of the official acceptance thereof. Whereinspection, testing, authentication or expert appraisal is required, the time needed shall not included into the said duration.
When reviewing a complaint,transportation administrative departmentsmay not collect any fees from the complainant or the respondent.
Wheretransportation administrative departments enter into any decisions with respect to a complaint, a public announcement shall be made on the public resources trading platform and the official website of therelevant transportation administrative department, which shall include the subject matter of the complaint, outcomes of investigation, final decisions, grounds for penalties, and an opinion regarding the penalties thereof.
Article 55 Transportation administrative departments shall investigate the subject matter of a complaint and,based on the outcomesofinvestigation and evidence collected, enter into decisionsin accordance with the following rules:
(i)Where the complaint has no basis in fact or law, or is based on fabricated details, forged documents, or evidence obtained by illegal means, the complaint shall be rejected;
(ii)where the facts of the complaint are true, and tendering and bidding activities have indeed involved illegal acts, the complaint shall be handled in accordance with the PRC Law on Tenders and Bids,the Implementation Regulations for the PRC Law for Tenders and Bids, and other relevant laws, regulations, and rules.
Article 56 Decisions on a complaint shall include the following matters:
(i)names, addresses andvalid contact methods of the complainant and the respondent;
(ii)subject matterof complaint and the claims of the complainant;
(iii)response and requestsof the respondent;
(iv)basic factsas established through the investigation;
(v)opinions on and legalgrounds for decisions;
(vi)informing complainants of their right to file for administrative review, relevant administrative review organs, and the valid period for applications for administrative review, as well as their right to initiateadministrative litigation and relevant statutesof limitations.
Aletter of complaint shall be executed in Chinese. Where a complainant provides documents or audio-visual materials in foreign languages, a Chinese translation should be appended.
Article 57 Where a complainant is not satisfied with the decision of the relevant transportation administrative departmenton the disposal of a complaint, the complainant may apply for administrative review by the people’s government to which the transportation administrative department is subordinate or a higher-level transportation administrative department within 60 days of the receipt of the letter of decision, or directly initiateadministrative litigation at a people’s court within 6 months of the receipt of the letter of decision.
Chapter VI Oversight and Management
Article 58 Transportation administrative departments shall enhance oversight and management of tendering and bidding activities for ordinary road maintenance projects based on the PRC Law for Tenders and Bids, the Implementation Regulations for the PRC Law for Tenders and Bids, and all other relevant laws, regulations and rules on administrative and supervisory responsibilities regarding tendering and bidding activities.
Article 59 Transportation administrative departments shall establish system for archiving material related to the handling of complaints regarding tendering and bidding activities and cooperate with relevant authorities in their oversight inspections of such archives.
Article 60 TheGuangzhou Municipal Transportation Bureau is responsible for developing a credit rating system forthe tenderees and bidding partiesof ordinary road maintenance projects within the administrative jurisdiction of Guangzhou in order to strengthen oversight and management of credit rating work and maintain a level playing field for market players.
Tenderees shall apply credit rating results to tendering for road maintenance projects. They are encouraged and supported in giving priority to enterprises with higher credit ratings.
With regard tobidding partiesor successful bidderswith high credit ratings, tenderees may waive the collection of bid security or reduce required project quality guarantee deposits. Such preferential treatment and credit rating criteria shall be explicitly set out in tender documents.
Article 61 Where tenderees, tendering agencies, bidding parties, members of bid evaluation committees or other parties to the bidding activities violate the PRC Law on Tenders and Bids, Implementation Regulations for the PRC Law on Tenders andBids, or regulationsof the Ministry of Transportation,the Guangdong Provincial People’s Government, or the Guangzhou Municipal People’s Government regarding tendering andbidding activities,suchacts shall be subject to strict penalties, pursuant to relevant laws and regulations, by municipal or district transportation administrative departments.
Article 62 Where personnel from oversight departments misuse their authority byillegally interfering with or infringing uponthe autonomy of tenderees, their direct superiors and other persons responsible shall be subject toadministrative sanctions. Where such acts constitute a criminal offense, such persons shall be prosecuted in accordance with the law.
Chapter VII Supplementary Provisions
Article 63 These Implementation Rules shall take effect fromthe date of issuance for a period of 3 years.
Method of disclosure:proactive disclosure