Laws of the Guangdong Province

Regulations of Shenzhen Special Economic Zone on Government Procurement

(Adopted at the twenty-seventh meeting of the Standing Committee of the Second Shenzhen Municipal People' s Congress on October 27,1998.)

Chapter ¢ñ General  Principles

Article 1 These regulations are formulated to strengthen the administration and supervision of the government procurement in Shenzhen Special Economic Zone, enhance the using efficiency of financial capital, promote fair trade and maintain competitive order of the market.

Article 2 These regulations are applicable to the national authorities, institutions or other social organizations that use financial capital to procure materials or services.

"Financial capital" in the preceding paragraph refers to the capital in or outside the budget and institutional income.

Article 3 Government procurement shall observe the principles of openness, fairness, impartiality and efficiency, maintain the social public interests, promote and safeguard the implementation of the State and Shenzhen Municipal laws, regulations and social economic policies.

Article 4 The municipal people' s government shall enact standards for the materials and services that the government procures according to the principle of economy. No unit can conduct a procurement beyond these standards.

Article 5 The financial department of the municipal and district people' s government is the competent department of government procurement (hereinafter referred to as "the competent procurement department" ), which is responsible for the management and supervision over the government procurement.

Other relevant departments of the municipal and district people' s government administrate and supervise the government procurement according to their powers and duties.

Article 6 The government procurement shall be carried out according to the plan.

The competent procurement department shall formulate and publish the procurement plan according to the approved budget and the using plan of other financial capital.

Article 7 "Procurer" in these regulations refers to the national authorities, institutions or other social organizations procuring the materials or services with financial capital. In centralized procurements, the government procurement organ is the procurer.

"Government procurement organ" in these regulations refers to the special organ that is established by the government and responsible for the centralized procurement and the organizational work of bid invitation of the financial capital at the corresponding level.

"Bid invitation agency" in these regulations refers to the social intermediate organization that obtains the qualification of the bid invitation agency and handles the affairs of bid invitation agency according to law.

"Supplier" in these regulations refers to the provider or the contractor who may conclude or have concluded a procuring contract with the procurer.

Article 8 The government procurement shall receive the social supervision.

Any organization and individual has a right to impeach and accuse the illegal activities. The municipal and district government shall give awards to the person who is meritorious to the  impeachment and accusation.

Chapter ¢ò Ways of Procurement

Article 9 The government procurement may adopt the ways of bid invitation, competitive negotiation, invitation to offer, procurement card, procurement from single source or others.

The concrete conditions and procedures applying to the other ways except bid invitation are stipulated by the municipal people' s government separately.

Article 10 If one of the following requirements is satisfied, public invitation shall be taken:

(1) the materials whose contract value exceeds 10,000 yuan;

(2) the projects of lease, renovation and afforestation whose contract value exceeds 20,000 yuan;

(3) the service projects whose contract value exceeds 10,000 yuan;

(4) the projects that shall be centralizedly procured, as stipulated in the procurement catalogue.

The value listed in the provisions of the preceding paragraph includes the value per se.

For the public invitation, the announcement for bidding shall be issued to the society in the way stipulated by the competent procurement department, and at least three suppliers who satisfy the qualifications of bid shall participate in the bidding.

Article 11 The competent procurement department shall woke out the catalogue of procurement for the projects centralizedly procured, and expand the scope of centralized procurement according to the actual demands.

Article 12 If there exists one of the following conditions, with the approval of the competent procurement department, the project whose value exceeds what is stipulated in Paragraph (1) of Article 10 of these regulations, may be adopt the way of bid invitation:

(1) The procurement project can only be obtained from the suppliers with limited scope, because of its complicacy and specialization;

(2) The cost of public invitation is so high as not to match the value of the procurement project.

For the bid invitation, the written invitation shall be issued to more than three suppliers, and at least three suppliers shall participate in the bidding.

Article 13 If there is one of the following conditions, bid invitation shall not be taken:

(1) involving national security and secret;

(2) The procurement project can only be obtained from a certain supplier, or the supplier owns the exclusive right and there exists no other rational choices or substitutes;

(3) The follow-up maintenance or supply of the accessory of the original procurement project must be procured from the original supplier, because of the needs for compatibility or standardization;

(4) The way of bid invitation is not suitable because of the unpredictable urgent need or accidents;

(5) No more than three suppliers who satisfy the qualification of bidding participate in the bidding after publicly noticing or inviting, or the suppliers do not response substantively to the bid  invitation document, thus resulting in the bid invitation unable to go through.

(6) other conditions except those stipulated in the first paragraph of Article 10 of these regulations and the conditions separately stipulated in laws and regulations.

Chapter ¢ó Procedure of Bid Invitation and Bidding

Article 14 Where the bid invitation is required by these regulations, the procurer shall entrust the government procuring organ; if the corresponding¨Clevel government doesn' t establish the government procuring organs, procurer shall entrust the agent of bid invitation designated by the competent procurement department.

The government procuring organ may organize the bid invitation by itself or remandate the agent of bid invitation designated by the competent procurement department to organize bid invitation.

Article 15 For the public invitation, the government procuring organ or the agent of bid invitation (hereinafter the organ of bid invitation) shall issue the announcement for bidding at least 20 days prior to the bidding closing date.

The notice of bid invitation includes the following main content:

(1) the name and value of the projects of bid invitation;

(2) the qualification of suppliers;

(3) the measures and time of the issuance of the bid invitation document;

(4) the time and location of bidding;

For the invited bidding, the organ of bid invitation shall issue the written invitation at least 15 days prior to the bidding closing date. The content of the written invitation consults the relevant provisions in the announcement for bidding.

Article 16 The organ of bid invitation shall work out the bid invitation document according to the entrustment of the procurer.

The bid invitation document shall include the following content:

(1) the information for suppliers;

(2) the nature, number, quality and technical specifications;

(3) the requirements and counting method of the bid price;

(4) the time for delivery, completing the project or providing the services;

(5) the certification documents of relevant qualification and credit provided by the supplier;

(6) the quota of the bid bond;

(7) the requirements for working out the bid document;

(8) the measures, location and the closing date of submitting the bid documents;

(9) the time of opening and evaluation of bids as well as the criterion and method of evaluation of the bids;

(10) the form and terms of the procurement contract;

(11) other items that shall be illustrated.

The quota of the bid bond listed in Item(6) of the preceding paragraph can not be higher than 2 percent of the bid value.

Bid document shall be confirmed by the procurer.

Article 17 The procurer shall work out the base price for a bid, which shall be preserved sealed. No one may disclose it before the bid is decided.

Article 18 The procurer shall be responsible for the authenticity of the bid invitation document.

Having issued the bid invitation document, the procurer may revise, supplement or correct it in writing, but shall notify the suppliers who have asked for the bid invitation documents and extend the bidding closing date according to the circumstances.

Article 19 For the public invitation, all the suppliers satisfying the qualification stipulated in the bid invitation document may participate in the bidding; For the invited bidding, the invited suppliers may participate in the bidding.

When asking for the bid invitation documents, the supplier who plans to participate in the bidding shall provide relevant documents to testify his qualification of bidding. The organ of bid invitation may preliminarily exam his qualification.

Article 20 The suppliers who have already asked for the bid invitation documents have a right to require the procurer to clarify it 3 days prior to the bidding closing date. The procurer shall reply in writing and inform the written reply to other suppliers who have asked for the bid invitation documents, but shall not illustrate the source of the problem.

If considering it necessary, the procurer may hold a meeting of bid invitation, inviting all the suppliers who have asked for the bid invitation documents to participate to clarify it. The matters clarified shall be recorded accurately and shall be served as a supplement of the bid invitation documents.

Article 21 The supplier planning to participate in the bidding shall work out the bid document according to the requirements of the bid invitation document.

The bid document shall be stamped with the official seal of the supplier' s unit and signed by the unit' s legal representative or the agent authorized by him, then be served sealed to the bidding location stipulated in the bid invitation document.

Prior to the bidding closing date, the supplier may revise, supplement, correct and withdraw the submitted bid documents.

Article 22 The organ of bid invitation shall open the bid in public way within three days after the bidding closing date. When open a bid, the organ of bid invitation shall invite the members of the bid evaluation committee, the representative of the suppliers and the representative of the relevant unit to participate in.

Article 23 The bid evaluation committee takes charge of the evaluation of the bid.

The bid evaluation committee consists of the procurer, the representative of the organ of bid invitation and experts in the technological, economic, law and other fields. The number of the committee member shall be an odd number more than five, among whom, the number of expert appraisers may be no less than half.

The person who has interests with the suppliers may not be a member of the bid evaluation committee.

The member of the bid evaluation committee shall observes the rule of evaluation of the bid, and justly performs duty according to law.

Article 24 When evaluating a bid, the bid evaluation committee may require the supplier to clarify the bid document, but the supplier may not modify the substantial matters in it.

It is prohibited that the procurer consults and negotiates with the supplier in the aspect of the bid document.

Article 25 The bid evaluation committee shall evaluate and compare the bid document according to the requirement of the bid invitation documents. Under the condition of satisfying all the requirements of the bid invitation document, the bidder who offers the lowest bid below the base price wins the bid. If the bidders who offer the lowest bid are more than two, the bid-winner shall be decided through drawing lots.

For the procurement project that has special requirement in technology or the bid invitation that determines the qualification as the object, the bid evaluation committee, with an approval of the competent procurement department, may comprehensively consider its character, performance, quality of the supplier' s service and the operation of the supplier except for the bid price to decide the bid winner.

Notes shall be made during the procedure of the evaluation of bid, which shall record the authentic circumstances concerned in detail and be signed by the recorder and the members of the bid evaluation committee.

Article 26 The open invitation and invited bidding need more than two effective biddings to be tenable.

Article 27 When the evaluation of bid is over, the organ of bid invitation shall inform the outcome of the evaluation of bid to the procurer, inform the supplier winning the bid as well as the suppliers losing the bid within three days after the procurer' s confirmation, and return the bid bond delivered by the suppliers losing the bid.

Article 28 The procurement project that has no special requirement in technology may adopt the way of on-the-spot competitive bidding.

Before the competitive bidding, the procurer shall examine the qualification of the suppliers planning to participate in the bidding. Only the suppliers who have delivered the bid confirmation as well as the bid bond and accord with the qualification after an examination can participate in the competitive bidding.

At the time of on-the-spot competitive bidding, the base price of the bid determined by the procurer is the beginning price, to which the suppliers respond to competitively. The responding price higher than the beginning price is nullified and the supplier who offers the lowest responding price below the beginning price wins.

In the on-the-spot competitive bidding, records shall be made and signed by the anchorman, recorder and the supplier winning the bid.

Article 29 If the bid invitation fails or be nullified because of the default of the procurer, organ of bid invitation or supplier, the bid invitation shall be reorganized according to these regulations.

Article 30 The international bid invitation shall be made according to relevant national provisions and international practice. If a loan of international financial organization or foreign government is used and the lender has special provisions, its provisions shall be followed.

Chapter ¢ô Contract of Procurement

Article 31 When the bid invitation ends, the procurer and the supplier winning the bid shall conclude the contract of procurement according to the bid invitation documents and the bid documents winning the bid at the time and location appointed by the "notice of winning the bid" .

Article 32 When concluding the contract of procurement, the procurer may increase or reduce the number of the materials of procurement or services within the scope stipulated by the bid invitation document, but the range of increase or reduction shall not exceed 10 percent of the value winning the bid. The procurer shall not change the unit-price.

Article 33 The longest performing period of the long-term goods-supplying contract and service procurement contract may not exceed 18 months.

Article 34 After the procurement contract is concluded, if the source of capital is within the budget, the procurer go to the financial department to handle the procedure of payment with the contract of procurement and other materials required by the financial department, and the financial department pays for the money to the supplier directly according to the provisions of the procurement contract; If the capital is outside the budget or operating income, the management department of the capital pays for the money to the supplier.

If the capital resource of the procurement project contains part capital within the budget, the procurer shall allocate the self-raised funds to the account designated by the financial department, and the financial department pays for it centralizedly after the procurement contract is concluded.

Article 35 The supplier winning the bid shall provide the performance security no more than ten per cent of the contract value to the procurer within ten days after the procurement contract is concluded. After receiving the performance security, the procurer shall return the bid bond of the supplier within three days and return the performance security within three days after the contract has been performed.

In case the procurement contract is concluded without bid invitation according to these regulations, the performance bond is handled according to the provisions of the preceding paragraph.

Article 36 Once the procurement contract is established by law, the parties shall perform the obligation stipulated by the contract compressively, and no party may modify or terminate the contract arbitrarily.

In case the substantive provisions of the contract need modification with both parties' consensus, the procurer shall obtain the consent of the procurement department before the modification.

Article 37 During the performance of the contract, if the procurer need to procure the same materials or services as the contract object separately, he, with the consent of the procurement department, can consult with the supplier to conclude the supplementary procurement contract, but the value of the supplementary contract shall not exceed 10 percent of the original value.

Chapter ¢õ Supervision and Inspection

Article 38 The procurement department shall inspect the government procurement regularly. The content of the inspection is as follows:

(1) whether the procurement is carried out according to plan;

(2) whether the procurement project meets the criterion stipulated by the municipal government;

(3) whether the method and procedure of the procurement meet the criterion of these regulations;

(4) the performance of the procurement contract;

(5) other contents.

The department or the inspected unit shall provide the needed materials for the inspection truthfully, and may not refuse.

Article 39 The competent procurement department shall accept the complaint about government procurement, and carry out necessary investigation. If finding out illegal activities, the procurement department shall correct it timely and handle it according to these regulations. The competent procurement department shall reply to the complainant in writing within 15 days after the acceptation date. In case of complicated circumstances, the period may be extended properly, but shall not exceed 30 days at the longest.

Article 40 The competent procurement department shall order the procurer to terminate the procurement if it finds out the procurement activities being carried out violate the provisions of these regulations seriously, and may cause great losses to the interests of the State, society or parties, or may result in the nullification of the procurement; In case the administrative or criminal responsibility shall be pursued to the person mainly liable in accordance with law, he shall be transferred to the relevant organ to handle.

Article 41 For the bid invitation whose procurement value is above 1,000,000 yuan, the organ of bid invitation shall inform the procurement department, auditing and supervision body; For the bid invitation whose procurement value is above 10,000,000 yuan, the procurement department, auditing and supervision body shall assign representatives to participate.

Article 42 The organ of bid invitation shall report the relevant information about the composition of bid evaluation committee, the process of the bid invitation, the result of the bid evaluation, etc, to the competent procurement department for record.

If adopting other ways to conduct a procurement, the procurer shall report the information about the name, way, and value of the procurement project to the competent procurement department regularly in writing for record.

Article 43 The competent procurement department shall announce the relevant information about the government procurement at its same level annually.

Article 44 The auditing body shall audit the government procurement at its same level annually, and report the auditing result to the people' government at its same level. When considering it necessary, the auditing body may organize specialized audit to the government procurement.

Chapter ¢ö Legal Liability

Article 45 If the procurer has one of the following activities, the procurement shall be nullified and the procurer shall be circulated a notice of criticism; If losses are caused to the supplier, the procurer shall bear liability for compensation; If the circumstances are serious, administrative responsibility shall be pursued to the person mainly liable in accordance with law; If a crime is constituted, criminal responsibility shall be pursued:

(1) failing to adopt the way of bid invitation when it shall;

(2) enhancing the criterion of procurement arbitrarily;

(3) organizing the bid invitation by oneself or entrusting the agency that has no legal qualification to act as the agent for the bid invitation;

(4) colluding with the organ of bid invitation or the supplier and inviting the bid fictitiously;

(5) disclosing the base price of the bid before the bid winner is decided.

(6) other activities violating the provisions of these regulations seriously.

Article 46 If the government department of procurement has one of the following activities, the bid invitation shall be nullified:

(1) The project of bid invitation exceeds the criterion stipulated by the municipal government;

(2) failing to organize the bid evaluation committee in accordance with the provisions of these regulations or evaluate the bid with the criterion stipulated by these regulations;

(3) colluding with the procurer or the supplier to invite the bid fictitiously;

(4) other activities violating the procedure of the bid invitation stipulated by these regulations seriously.

In the case of the activities referred to in Item (1)¡¢(3) of the preceding paragraph, the procurement organ of the government shall bear the joint and several liability with the procurer or the supplier.

Article 47 If the agency of bid invitation has one of the following activities, the bid invitation shall be nullified; In case losses are caused to the procurer or the suppliers, the agency shall bear liability for compensation; The agency of bid invitation may be fined no less than 2 percent but no more than 10 percent of the value of the bid invitation by the competent procurement department; If the circumstances are serious, the agency shall be prohibited to invite bids for government procurement as an agent of the government within three years:

(1) knowing obviously that the procurement project surpasses the standard stipulated by the municipal government, and still acting as the agent for the bid invitation;

(2) failing to organize the bid evaluation committee in accordance with these regulations or evaluate the bid with the principles stipulated in these regulations;

(3) colluding with the procurer or the supplier and inviting the bid fictitiously;

(4) other activities seriously violating the procedure of bid invitation stipulated by these regulations.

In the case of activities referred to in Item(1) and (3) of the preceding paragraph, the agency of bid invitation shall bear the joint and several liability with the procurer or supplier.

Article 48 If the supplier has one of the following activities, the bid invitation shall be nullified; If losses are caused to the procurer, department of bid invitation or other suppliers, the supplier shall bear the liability for compensation; The supplier may be fined no less than 2 percent but no more than 10 percent of the value of the bid invitation by the competent procurement department; If the circumstances are serious, the supplier shall be prohibited to participate in the bidding for the government procurement inviting bids within three years:

(1) concealing the reality of the bidding or conducting nullified bidding intentionally;

(2) colluding among the suppliers to decide the bid price in advance or making a special person to win the bid by conspiracy;

(3) impeding or squeezing other suppliers with dishonest means;

(4) offering a bride or other dishonest interests to the procurer or the department of bid invitation;

(5) colluding with the procurer or the department of bid invitation for the bidding;

(6) other activities seriously violating the provisions of these regulations.

If the supplier has the activities referred to in Item(5) of the preceding paragraph, he shall bear the joint and several liability with the procurer and the department of bid invitation.

Article 49 If the fault of the procurer or the department of bid invitation results in the failure or nullification of the bid invitation, or if the procurer doesn' t conclude contract of procurement with the supplier winning the bid, the procurer or the department of bid invitation shall return the bid bond doubly to the supplier.

If the supplier has one of the activities in the first paragraph of Article 48 of these regulations, or give up bidding after opening of the bid, the bid bond shall not be returned.

Article 50 If the party violates the provision in Article 31 of these regulations, and fails to conclude the contract of procurement in accordance with the bid invitation document and the bid document winning the bid, the competent procurement department shall order the party to correct it.

If the procurer fails to conclude the contract of procurement with the supplier winning the bid without proper reasons, the person mainly liable shall bear the administrative responsibility and shall be ordered to conclude the contract; If the supplier winning the bid fails to conclude the contract of procurement with the procurer without proper reasons, he shall bear the liability of compensation for the losses caused and shall be prohibited to participate in the bidding for the government procurement inviting bids within three years.

Article 51 If the procurer surpasses the stipulated quota, and violates the provisions of Article 32, 36, 37 of these regulations, the excess shall be nullified; If the unit-price and other provisions are modified arbitrarily, the modification shall be nullified and the administrative responsibility shall be pursued to the person mainly liable.

Article 52 If the party providing the performance security fails to fulfill the contract, he has no right to ask for the return of the security. If the party accepting the performance security fails to fulfill the contract, he shall return it doubly.

Article 53 If the procurer or the government department of procurement violates the provisions in the second paragraph of Article 38 of these regulations, and fails to offer the necessary materials for inspection, the administrative responsibility shall be pursued to the person mainly liable in accordance with law. If the agency of bid invitation or the supplier violates the provisions, he shall be fined no less than 10,000 yuan but no more than 20,000 yuan; If the circumstances are serious, he shall be prohibited to invite bids for government procurement as an agent of the government or participate in the bidding for the government procurement within three years.

Article 54 If the competent department, procurer, the staff members of the department of bid invitation as well as the members of the bid evaluation committee abuse their power, neglect their duty, engage in malpractices for personal gain or solicit and accept bribes, the illegal gains shall be confiscated and the administrative responsibility shall be pursued in accordance with law; If losses are caused, they shall bear the liability for compensation; If it constitutes a crime, the criminal responsibility shall be pursued.

Chapter ¢÷ Supplementary Provisions

Article 55 The construction project invested by the government shall be carried out in accordance with provisions of "Regulations of Shenzhen Special Economic Zone on Bid Invitation and Bidding for the Construction Project" and other laws as well as regulations concerned.

Article 56 The municipal people' s government may enact the implementing rules in accordance with these regulations.

Article 57 These regulations shall go into effect as of January 1, 1999.