National Development and Reform Commission issued tender construction project regulations revision opinions collection

The "Regulations on Construction Projects that must be Tendering" has been issued and implemented, and the scope of construction projects that must be tendering has been greatly reduced. This is an important measure to implement the spirit of the 19th CPC National Congress and the second and Third Plenary Sessions of the 19th CPC Central Committee in the field of bidding and tendering, and deepen the reform of "delegating management services", which will help expand the autonomy of market players, especially private investors, reduce the burden on enterprises, and stimulate market vitality and creativity.

According to the provisions of the Tendering and Bidding Law, in 2000, the former State Development Planning Commission reported to The State Council for approval and issued the "Provisions on the Scope and scale standards for Bidding of Engineering Construction projects" (Order No. 3 of the State Development Planning Commission, hereinafter referred to as Order No. 3), which clarified the specific scope and scale standards of engineering projects that must be tendering. Since the promulgation and implementation of Decree No. 3, China has formed a relatively perfect compulsory bidding system system, which has played a positive role in promoting the popularization and application of the bidding system, standardizing the bidding behavior, guaranteeing fair competition, improving the quality and efficiency of bidding and procurement, and preventing and punishing corruption. With the continuous development of China's economy and society and the continuous deepening of reform, the problem of too wide a scope and too low a standard gradually emerged in the implementation of Decree No. 3. At the same time, in accordance with the provisions of Decree No. 3, various provinces and municipalities have generally formulated the specific scope and scale standards for projects that must be tendering in their regions, expanding the scope of compulsory bidding to varying degrees, and causing inconsistent rules, further increasing the burden on market players.

Recently, the National Development and Reform Commission issued a draft for comments on the revised provisions on Construction projects that must be Tendering. The details are as follows:

Provisions on Construction Projects subject to Tender (revised Draft for Comment)

Article 1 These Provisions are formulated in accordance with the provisions of Article 3 of the Tendering and Bidding Law of the People's Republic of China in order to determine the construction projects that must be subject to tender, standardize the tendering and bidding activities, improve work efficiency, reduce enterprise costs and prevent corruption.

Article 2 Projects that use state-owned funds in whole or in part for investment or state financing include:

(1) Projects that use the budget funds of more than 2 million yuan as stipulated in the Budget Law, and the funds account for more than 10% of the total investment;

(2) Projects using funds of state-owned enterprises and institutions, and the funds occupy a controlling or leading position.

The "holding or dominant position" stipulated in the preceding paragraph includes the following three circumstances:

(1) The funds of state-owned enterprises and institutions in the project account for more than 50% of the total investment;

(2) Although the funds of state-owned enterprises and institutions used in the project are less than 50 percent of the investment amount, the voting rights enjoyed by state-owned enterprises and institutions according to the amount of capital contributed by them are sufficient to have a significant influence on the decisions concerning the project construction;

(3) State-owned enterprises and institutions can actually control the construction of projects through investment relations, agreements or other arrangements.

The proportion of funds of enterprises and institutions in the project shall be calculated according to the sum of funds of all state-owned enterprises and institutions in the source of funds of the project.

Article 3 Projects using loans and aid funds from international organizations or foreign governments include:

(1) Projects using loans and aid funds from the World Bank, the Asian Development Bank and other international organizations;

(2) Projects using loans and aid funds from foreign governments and their institutions.

Article 4 Large-scale infrastructure, public utilities and other projects related to social public interests and public safety that do not fall under the circumstances specified in Articles 2 and 3 of these Provisions, the specific scope of bidding must include:

(1) Coal, oil, natural gas, electricity and new energy infrastructure projects;

(2) Railway, highway, pipeline, water transport, public aviation infrastructure projects;

(3) Telecommunication hubs and communication information network infrastructure projects;

(4) infrastructure projects for flood control, irrigation, drainage and water diversion (supply);

(5) Urban rail transit projects.

Article 5 For projects within the scope of Article 2 to Article 4 of these Provisions, where the survey, design, construction, supervision, and procurement of important equipment and materials related to project construction meet one of the following standards, bidding must be conducted:

(1) The estimated price of a single construction contract is more than RMB 4 million yuan;

(2) For the purchase of important equipment and materials, the estimated price of a single contract is more than 2 million yuan;

(3) For the procurement of survey, design and supervision, the estimated price of a single contract is more than 1.03 million yuan.

If the survey, design, construction, supervision, and procurement of important equipment and materials related to the construction of a project within the scope of Article 2 to Article 4 of these Provisions fail to meet the corresponding standards in the preceding paragraph, the single procurement does not belong to the scope of bidding required in these Provisions.

For the same project that can be combined in survey, design, construction, supervision and similar procurement of important equipment and materials related to process construction, if the total estimated contract price reaches the standard specified in paragraph 1 of this Article, bidding must be conducted.

The contract owner shall, in accordance with the law, issue a general contract for the project and all or part of the goods and services related to the project construction. If more than one of the estimated prices of the survey, design, construction and purchase of the important equipment and materials related to the project construction in the general contract reaches the corresponding standard in paragraph 1 of this Article, the whole general contract must be issued by tender.

Article 6 Where the procurement of major equipment and materials related to the survey, design, construction, supervision and construction of a project within the scope of Article 2 to 4 of these Provisions fails to meet the scale standards specified in Article 5 of these Provisions, the individual procurement shall be independently chosen by the purchaser according to law, and no unit or individual shall illegally interfere; Where government procurement is involved, it shall be implemented in accordance with government procurement laws and regulations.

Article 7 These provisions shall take effect as of the date of the year, and the original Provisions on Engineering Projects that must be Tendering (Order No. 16 of the National Development and Reform Commission) and the Provisions on the Scope of Infrastructure and public utility Projects that must be Tendering (Regulation No. 843 of the Development and Reform Regulations (2018)) shall be repealed simultaneously.