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2021

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06

About the scope of the project that must be tendered! The National Development and Reform Commission has a new reply


The National Development and Reform Commission's summary of selected messages in reply

Q1 Can construction projects under RMB 4 million be directly contracted out?

Decree No. 16 issued by the National Development and Reform Commission stipulates that construction projects of more than 4 million yuan must be publicly tendered, but there is no regulation on how to contract for projects less than 4 million yuan. Question: Can the tenderee directly issue the contract, or according to the relevant laws and regulations of financial procurement, use competitive negotiation and competitive negotiation to issue the contract?

Hello, "Further complete the implementation of the and " (Development and Reform Measures Regulations [2020] 770 No.) stipulates that Articles 2 to 4 of the "Provisions on Construction Projects That Must be Tendered" (Decree No. 16 of 2018, hereinafter referred to as Order No. 16) and the "Provisions on the Scope of Infrastructure and Public Utilities Projects That Must Be Tendered" (Development and Reform Regulations) (2018] No. 843) If the estimated price of a single contract for construction, goods, and service purchases does not reach the scale standard specified in Article 5 of Order 16 for a project within the scope of Article 2, the purchaser shall independently choose the procurement method for the single purchase according to law. No unit or individual may illegally interfere; among them, government procurement shall be implemented in accordance with government procurement laws and regulations. Thank you for your concern and support for the development and reform work!

Response unit: Department of Laws and Regulations

Q2 Definition of the scope of projects that must be tendered

According to Order No. 16 of the National Development and Reform Commission of the People's Republic of China, "Regulations on Construction Projects That Must be Tendered", Article 2 (1) Use budget funds of 2 million yuan or more, and the funds account for more than 10% of the investment The project belongs to the scope of mandatory bidding. Article 5 (1) If the estimated price of a single construction contract is more than RMB 4 million, bidding must be invited. May I ask if the total investment of a reconstruction and expansion project is 3.6 million yuan, the source of funds is all budget funds, there is only one construction contract, and the construction contract amount is 3.1 million yuan. If according to Article 2 (1), the project is within the scope of mandatory bidding, and according to Article 5 (1), the construction contract amount is not above the required bidding limit, then is the construction of the project within the scope of mandatory bidding?

Hello, "Further complete the implementation of the and " (Development and Reform Measures Regulations [2020] 770 No.) stipulates that Articles 2 to 4 of the "Provisions on Construction Projects That Must be Tendered" (Decree No. 16 of 2018, hereinafter referred to as Order No. 16) and the "Provisions on the Scope of Infrastructure and Public Utilities Projects That Must Be Tendered" (Development and Reform Regulations) (2018) No. 843) For projects within the scope of Article 2, the individual purchases of survey, design, construction, supervision, and important equipment and materials related to engineering construction have reached the corresponding single contract price estimates specified in Article 5 of Order 16 Standards, the single-item purchase must be tendered; the single-item purchase in the project that does not meet the aforementioned corresponding standards does not fall into the scope of mandatory tendering stipulated in Decree No. 16. The estimated price of a single contract for the construction of the project you consulted is 3.1 million yuan, which is less than 4 million yuan, which does not fall into the scope of mandatory bidding stipulated in Order 16. Thank you for your concern and support for the development and reform work!

Response unit: Department of Laws and Regulations

Q3 Is there a need for public bidding for a construction project worth RMB 4 million?

"Regulations on Projects that Must be Tendered", Article 5 of 2018 Decree No. 16 Projects within the scope specified in Articles 2 to 4 of these regulations, their survey, design, construction, supervision and important equipment related to engineering construction If the procurement of materials, materials, etc. meet one of the following standards, bid invitations must be made: (1) The estimated price of a single construction contract is more than RMB 4 million.

Excuse me: In the conditions for bidding, does the estimated price of the construction unit price contract include 4 million yuan? Or must it be greater than 4 million yuan?

Hello, "The estimated price of a single construction contract is more than RMB 4 million" includes RMB 4 million. Thank you for your concern and support for the development and reform work!

Response unit: Price Department

Q4 Project General Contract Bidding Consultation

According to current bidding laws and regulations, bidding projects are generally divided into three categories: service (reconnaissance, design, cost consulting, supervision, evaluation, etc.), construction, and materials. The bidding limits are 1 million, 4 million and 200 ten thousand. May I ask which type of general project contracting (ie EPC, including survey and design, construction, and materials) should belong to, and how to determine its limit?

Hello, "Notice on Further Completing the Implementation Work of <Regulations on Construction Projects That Must be Tendered> and <Regulations on the Scope of Infrastructure and Public Utilities Projects That Must be Tendered>" (Development and Reform Measures [2020] No. 770) stipulates that for projects within the scope of Articles 2 to 4 of the "Regulations on Construction Projects That Must be Tendered" (National Development and Reform Commission Order No. 16 of 2018, hereinafter referred to as "Order No. 16") And if all or part of the goods and services related to the construction of the project are contracted out through general contracting, in the estimated price of the construction, goods, services and other parts of the general contract, as long as one item meets the corresponding standard specified in Article 5 of Order 16, that is the construction part If the estimated price reaches more than 4 million yuan, or the goods part reaches more than 2 million yuan, or the service part reaches more than 1 million yuan, the entire general contract shall be tendered. Thank you for your concern and support for the development and reform work!

Response unit: Department of Laws and Regulations

The full text of the reply

  1. Reply to the "No Bidding" Circumstances

Article 9 of the "Regulations for the Implementation of the Tendering and Bidding Law of the People's Republic of China", except for the special circumstances in which the tendering may not be conducted as stipulated in Article 66 of the Tendering and Tendering Law, the tendering may not be conducted under any of the following circumstances: (2) ) The purchaser can construct, produce or provide on its own in accordance with the law.

Consultation content: 1. "The purchaser can construct, produce or provide by itself according to law" How to understand, does this "ability" include the purchaser's subsidiary "ability"? 2. Take the development group as an example, it has a building Subsidiary, if the development group's self-financed and self-built project can be directly entrusted to its wholly-owned or holding subsidiary to build it without bidding? If not, based on common sense and truth, one's own affairs cannot be done by one's own people. It is indeed incomprehensible and difficult. accept.

Answer: Regarding Article 9 (2) of the "Regulations for the Implementation of the Tendering and Bidding Law", the stipulation that "purchasers can construct, produce or provide on their own in accordance with the law" shall meet the following relevant requirements: First, the purchaser means Legal persons or other organizations with civil subject qualifications do not include their related parent companies and subsidiaries, as well as legal persons and other organizations with independent civil subject qualifications that have management or interest relationships with them; the second is that the purchaser itself has engineering construction and goods Qualifications and capabilities for production or service provision; Third, the purchaser must not only possess the corresponding qualifications and capabilities, but also meet the statutory requirements. In accordance with laws and regulations, the purchaser shall invite bids for work items that the purchaser cannot undertake at the same time. The purchaser in this article refers to the project investor itself, not other project owners entrusted by the investor. Otherwise, if any project entrusts a qualified project owner, the bidding will not be carried out, which will make the bidding system a mere formality.

Second. Reply to the consultation on public bidding issues

1. Can several projects that should be publicly tendered in accordance with the law be merged together for only one tender?

2. Can the tenderer of a project that should open tenders in accordance with the law entrust other institutions (non-tendering agencies) as tenderers (non-tendering agents) to conduct tenders?

Reply:

Question 1: The existing relevant laws and administrative regulations for bidding and bidding do not make clear prohibitions on the situation you mentioned. In order to improve the efficiency of bidding and reduce transaction costs, the tenderee may, according to actual needs, conduct centralized bidding for repetitive bidding projects within a certain period of time or similar bidding projects of different implementation entities, but there shall be no restrictions or exclusion of potential bidders or bidders, etc. Violations of laws and regulations.

Question 2: The project owner can entrust other units as the tenderer, such as the agent construction system and centralized tendering.

3. Reply on whether government investment projects can be traded through a third-party bidding electronic trading platform

Answer: Article 6 of the "Measures for Electronic Bidding and Bidding" stipulates that legally established bidding and bidding trading venues, bidders, bidding agencies, and other legally established legal entities can construct and operate electronic bidding and bidding according to industry and professional categories. Trading platform. The State encourages equal competition among electronic bidding and bidding trading platforms. The "Internet +" Bidding and Procurement Action Plan (2017-2019) clearly states that it actively guides social capital to build and operate an electronic bidding and bidding trading platform in accordance with the market-oriented direction. At the same time, promote fair competition among trading platforms, and must not exclude or restrict trading platforms built and operated by market entities, limit the number of docking trading platforms, and directly designate trading platforms for bidders.

Four. Reply on which department should be filed with the self-bidding filing system project

Article 12, Article 3 of the "Law on Bidding and Bidding" stipulates that "if the bid inviting party handles the bidding matters on its own for a project that requires bidding in accordance with the law, it shall file with the relevant administrative supervision department for the record." Regarding the approval and approval of projects that must be subject to bidding in accordance with the law, Article 7 of the "Regulations on the Implementation of Bidding and Bidding" has clearly stipulated that "...the project approval and approval departments shall promptly notify the relevant parties of the approval and approval of the bidding scope, the method of bidding, and the form of the bidding organization. Administrative supervision department". I would like to ask which administrative supervision department should be filed with if a project for the record-filing system that requires bidding in accordance with the law adopts the form of self-tendering?

Answer: According to Article 7 of the "Regulations on the Implementation of the Tendering and Bidding Law", the filing project does not need to approve the bidding plan. Therefore, there is no need to go to the project filing department for self-bidding filing. According to Article 12, Paragraph 3 of the "Bidding and Bidding Law", "For projects that must be tendered in accordance with the law, if the tenderee handles the tendering matters on its own, it shall file with the relevant administrative supervision department." It shall be filed with the relevant administrative supervision department in accordance with Article 4 of the "Regulations for the Implementation of the Bidding and Bidding Law".

V. Reply on whether the subsidiary of a state-owned enterprise can participate in the bidding organized by the state-owned enterprise

Can a state-owned enterprise's subsidiary company with equity participation as a bidder participate in the bidding work of the state-owned enterprise organization?

Answer: The first paragraph of Article 34 of the "Regulations for the Implementation of the Tendering and Bidding Law" stipulates that legal persons, other organizations or individuals that have an interest in the tendering party that may affect the fairness of the tendering shall not participate in the bidding. This article does not entirely prohibit legal persons, other organizations or individuals that have an interest in the bidder from participating in bidding. The conditions specified in the first paragraph of this article need to meet the two conditions of "existence of interest" and "may affect the fairness of the bidding" at the same time. Even if there is a certain "interest relationship" between the bidder and the tenderer, if the bidding activities are carried out in accordance with the law and the procedures are standardized, and the "interest relationship" does not affect its fairness, they can participate in the bidding.

VI. Reply on whether the construction drawing review, cost consultation, third-party monitoring, monitoring and other services in the construction project are within the scope of legally required bidding projects

According to the notice of the General Office of the National Development and Reform Commission on furthering the implementation of the "Regulations on the Construction Projects That Must be Bidding" and the "Regulations on the Scope of Infrastructure and Public Utilities Projects That Must be Bidding" (Development and Reform Measures Regulations (2020) No. 770 ) Article 1, Paragraph 3 says: "For service items that are not clearly listed in Item (3) of Article 5, Paragraph 1 of Order 16, and items that are not clearly listed in Article 2 of Circular 843, it shall not be compulsory. Bidding." Excuse me: If the project is a full financial investment and the above service fees are estimated to exceed one million yuan, can the owner unit choose not to Bidding.

Response: "Notice on Further Completing the Implementation Work of <Regulations on Construction Projects That Must be Tendered> and <Regulations on the Scope of Infrastructure and Public Utilities Projects That Must be Tendered>" (Development and Reform Measures [2020] 770 No.) stipulates that if there is no basis for laws, administrative regulations, or the provisions of the State Council, for the service items that are not clearly listed in Article 5, paragraph 1, item (3) of Order 16, no mandatory bidding shall be required. Construction drawing review, cost consultation, and third-party inspection services are not listed in the list of regulations and are not items that must be tendered. However, if government procurement is involved, it shall be implemented in accordance with government procurement laws and regulations.

Seven. Reply on who should pay the bidding agency service fee

Interim Measures for the Administration of Fees for Bidding Agency Services, Document No. 20021980, was included in the official document issued on January 1, 2016 on the 31st of the invalid list. May I ask who should pay the fees for bidding agency services? /p>

Answer: The original "Interim Measures for the Administration of Charges for Bidding Agency Services" (Counting Price [2002] No. 1980) has been published on January 1, 2016 by the "Decision on Abolishing Certain Regulations and Regulatory Documents" (National Development and The Reform Commission Order No. 31) was repealed. At present, there are no mandatory regulations on the payment entity of the bidding agency service fee at the national level. The bidding agency service fee shall be executed by the bid inviting party, bidding agency and bidders in accordance with the agreed method.

8. Reply on whether 10 million renovation projects that are not related to the new construction, reconstruction and expansion of buildings and structures must be tendered

Does the state-owned enterprise project require a bidding project for a separate 10 million renovation project that has nothing to do with the new construction, reconstruction, or expansion of buildings and structures?

Answer: According to Article 2 of the "Regulations for the Implementation of the Tendering and Bidding Law", the construction project mentioned in Article 3 of the Tendering and Bidding Law refers to the project and the goods and services related to the construction of the project. The project mentioned in the preceding paragraph refers to construction projects, including the new construction, reconstruction, and expansion of buildings and structures, as well as related decoration, demolition, and repairs. Accordingly, the project you are consulting does not belong to the legally required bidding project as stipulated in the "Bidding and Bidding Law".

9. Reply on the scope of application of the "Regulations on Construction Projects That Must be Tendered"

Does the "procurement of important equipment and materials related to engineering construction" mentioned in Article 5 of the "Provisions for Construction Projects That Must be Tendered" include the procurement of non-A-provided materials by state-owned construction enterprises? For the construction projects of Articles 2 to 4, if the construction company implements the procurement of important equipment and materials, is it necessary to bid for tenders?

Answer: According to Article 29 of the "Regulations on the Implementation of the Tendering and Bidding Law", the tenderee may implement general contract tenders for all or part of the project and the goods and services related to the project construction in accordance with the law. If the projects, goods, and services included in the scope of general contracting in the form of temporary valuation fall within the scope of projects that must be tendered in accordance with the law and reach the scale standards prescribed by the state, the tender shall be conducted in accordance with the law. The "Opinions of the General Office of the State Council on Promoting the Sustainable and Healthy Development of the Construction Industry" (Guobanfa [2017] No. 19) stipulates that, except for projects that are included in the scope of general project contracting in the form of temporary valuation and must be tendered in accordance with the law, general project contracting Units can directly issue other professional businesses covered in the general contract. According to this, the state-owned project general contracting unit can subcontract by direct contracting, but when the projects, goods, and services are included in the scope of the general contract in the form of temporary valuation, they fall within the scope of the project that must be tendered according to law and reach the national level. Where scale standards are specified, bid invitations shall be made in accordance with the law.

X. Reply on the time limit for obtaining bidding documents

The Tendering and Bidding Law and the Implementing Regulations of the Tendering and Bidding Law stipulate that the bidding documents' sale period shall not be less than 5 days, from the day when the bidding documents are issued to the deadline for the bidder to submit the bidding documents, and the shortest shall not be less than 20 days. . Since we all implement electronic bidding and bidding styles are all obtained by potential bidders on the online trading platform without any charges, we have an idea that there is no restriction on the time for obtaining bid documents, and all potential bidders before the deadline for bidding The bidding documents are obtained from the online trading platform, but there is still no less than 20 days from the date when potential bidders can obtain the bidding documents to the deadline for bidding.

Answer: Article 16 of the "Regulations on the Implementation of the Tendering and Bidding Law" stipulates that the bidding documents sale period shall not be less than 5 days, which is to ensure that potential bidders have enough time to obtain the bidding documents to ensure the competitive effect of the bidding. Therefore, in order to attract more potential bidders to participate in the bidding, the tenderee should comprehensively consider holidays, the location of the document sale, traffic conditions, and the geographical scope of potential bidders when determining the prequalification documents for specific bidding projects or the sale period of the bidding documents. Circumstances, a reasonable time limit of not less than 5 days shall be specified in the bidding announcement.

11. Reply on the difference between the bid-winning candidate announcement and the bid-winning announcement

During the bidding process, after the bid evaluation, the tenderee will announce the bid-winning candidates, and after the completion of the announcement, the bid-winning announcement will be issued. What is the difference between the bid-winning candidate announcement and the bid-winning announcement? What are the legal effects of each?

Response: According to Article 54 of the "Regulations on the Implementation of the Tendering and Bidding Law", for projects that must be tendered in accordance with the law, the tenderee shall publicize the successful bidders within 3 days from the date of receiving the tender evaluation report, and the publicity period shall not be less than 3rd. If bidders or other interested parties have objections to the bid evaluation results of projects that are subject to bidding in accordance with the law, they shall raise them during the publicity period of the bid-winning candidates. The bid inviting party shall reply within 3 days from the date of receipt of the objection, and shall suspend the bidding and bidding activities before making a reply.

The nature of the bid winning result announcement is informative, that is, the bid winning result is announced to the public. The publicity of bid-winning candidates and the publicity of the bid-winning results are both a system to better play the role of social supervision. The difference between the two is that the time when relevant information is disclosed to the public is different. The former is before the final result is determined, and the latter is after the final result is determined; the second is that during the announcement of the successful bid candidate, bidders or other interested parties can raise objections in accordance with the law. , No objection can be raised after the bid winning result is publicized.

12. Reply to the relevant questions about the tenderee and the preparation of tender documents

For the government-invested construction project bidding for which the construction unit has been determined and the project has been approved, I would like to ask: 1. The bidder only refers to the project construction unit. Does it also include the local government that manages the construction order? 2. The local government or relevant Can the departmental department formulate more detailed texts of bidding documents or bid evaluation standards and methods without conflicting with the standard bidding documents issued by the state or the industry competent department of the State Council, and require the bidders of government-invested construction projects to Use?

Answer: Question 1: According to Article 8 of the "Law on Tendering and Bidding", the tenderee is a legal person or other organization that proposes and conducts tendering projects in accordance with the provisions of this law.

Question 2: Local governments can formulate more detailed standard document texts for bidders of construction projects invested by the local government, provided that they do not conflict with the standard bidding documents issued by the state or the industry competent department of the State Council, but It is not allowed to illegally interfere with bid invitation and bidding activities, and it is not allowed to unreasonably restrict the autonomy of the bid inviting party in this way.

Thirteen. Reply to the consultation on the details of the provisions of the National Development and Reform Commission No. 10 Order

According to the provisions of Article 6, the announcement of successful bidders for projects that are required to bid in accordance with the law shall include the following contents: (1) The order of the successful bidders, their names, bid quotations, quality, construction period (delivery date), and bid evaluation Situation; (2) The name of the project leader promised by the winning bidder in accordance with the requirements of the bidding documents and the name and number of the relevant certificates; (3) The qualification and ability of the winning candidate to respond to the requirements of the bidding documents; (4) The channels and methods for raising objections (5) Other contents publicized as stipulated in the bidding documents. The bid winning results of projects that must be tendered in accordance with the law shall be announced with the name of the winning bidder. The questions are as follows: 1. In the third paragraph of Article 6, it is stipulated to publicize the qualification and ability requirements of the successful bidder to respond to the requirements of the bidding documents. What documents are specifically included in these qualification and ability requirements? Please list and explain in detail? Does it include those used to prove performance? Copies of the contract? Does it include technical personnel's professional certificates and other relevant documents? 2. If a copy of the performance contract in the qualification and ability conditions required by the bidding documents is required to be publicized, will it constitute an infringement of the bidder's trade secrets? 3. In addition to the basic content such as total score, ranking, quotation, etc., is it necessary to publicize the scores of each sub-item scored by the bid evaluation committee? Suggestion: As a state-owned enterprise procurement, I hope to be standardized and transparent in the publicity of bidding Therefore, relevant publicity has always been carried out in accordance with national laws and regulations. However, some articles stipulate that the content of publicity is too general. If there is less publicity, it is afraid of affecting the right to know of bidders and the public. Business secrets. Therefore, I hope to be able to clarify which materials (specifically specify) must be publicized, and cite corresponding examples (such as contract certificates, qualification certificates, etc.), which is more conducive to the standardization of publicity.

Answer: Question 1: The qualification requirements of the successful bidder in response to the requirements of the bidding documents will depend on the requirements of the specific bidding project, and it is impossible to pass legislation to make uniform regulations.

Question 2: "Administrative Measures for Tendering Announcements and Public Information Release" (National Development and Reform Commission Order No. 10) only requires that the successful bidders respond to the qualifications of the bidding documents, and does not require a copy of the contract to prove their performance. And other supporting documents.

Question 3: Whether it is necessary to publicize the scores of each sub-item scored by the Bid Evaluation Committee, the current practice varies from place to place, and there is no unified regulation at the national level. However, if the tenderee voluntarily discloses from the perspective of improving the transparency of bidding activities and accepting social supervision, the relevant content may be announced in the publicity of the bid-winning candidates, but the list of members of the bid evaluation committee shall be kept confidential.

14. Reply on the understanding of the relevant provisions of the "Measures for Construction Bidding and Bidding of Engineering Construction Projects"

Understand the provisions of Article 8 (4) "There are design drawings and technical materials required for bidding" in the "Measures for Construction Bidding and Bidding of Construction Projects" (7 Ministries [2013] No. 30 Order). What design depth does the article "design drawing" refer to, preliminary design drawing or construction drawing design drawing? When the construction drawing design document has not been reviewed and approved, does the construction project adopt preliminary design drawing bidding in accordance with the provisions of this article?

Answer: According to Article 26 of the Regulations on the Management of Construction Engineering Survey and Design, the preparation of preliminary design documents shall meet the requirements of preparing construction bidding documents, ordering major equipment and materials, and preparing construction drawing design documents. The preparation of construction drawing design documents shall meet the needs of equipment and materials procurement, production and construction of non-standard equipment, and indicate the reasonable service life of the construction project. The "Measures for Construction Bidding and Bidding of Engineering Construction Projects" (Order No. 30 of the Seven Ministries and Commissions) does not specify the design depth of the "design drawings". The tenderee may adopt preliminary design drawings or construction in accordance with the relevant regulations of the project's industry and the actual needs of the project. Drawing design documents for bidding.

Fifteen. Regarding whether the open business scope of bidding and bidding means that no administrative permission is required

Notice of the General Office of the General Office of the State Development and Reform Commission and the General Office of the General Administration of Market Supervision on Further Regulating the Examination of Enterprise Business Qualifications in the Process of Bidding and Bidding. The prequalification documents, bidding announcements, and bidding documents shall not use the business scope recorded in the business license as the basis for determining the bidder's business qualifications, and shall not use a specific expression or clearly record a specific business as the business scope recorded i