Circular on Printing and Issuing of the Interim Measures for Announcement of Rec

Fa Gai Regulation [2008] No. 1531

Development and Reform Commissions, Economic and Trade Commissions, Departments of Supervision, Departments of Finance, Departments of Construction, Bureaus of Railways, Departments of Transport, Communications Administrations, Departments of Information Industry, Departments of Water Resources, Departments of Commerce, Civil Aviation Administrations and Legislative Affairs Offices of all provinces, autonomous regions and municipalities directly under the Central Government,

With a view to implement the Some Opinions of the General Office of the State Council on Further Regulating the Activities of Tendering and Bidding (Guo Ban Fa [2004] No.56), promote the construction of the tendering and bidding credit system, perfect the tendering and bidding faith-breaking punishment system, and regulate behaviors of agents concerned in tendering and bidding, member units involved in the inter-departmental coordination mechanism decide to set up the system of announcement of illegal behaviors in tendering and bidding, and jointly formulate the Interim Measures for Announcement of Records of Illegal Behaviors in Tendering and Bidding (hereafter referred as Interim Measures), which is hereby printed and distributed. For the purpose of fully carrying out the Interim Measures, some relevant issues and requirements are informed hereby as follows:

1. All preparations for the implementation of the Interim Measures shall be made. The establishment of the system of announcement of records of illegal behaviors in tendering and bidding is an important and effective measure for establishing the credit system in the tendering and bidding market. All regions shall create platforms of their own administrative districts for announcement of records of illegal behaviors in tendering and bidding according to the Interim Measures as soon as possible; those who have established platforms shall further regulate and improve their platforms in accordance with the Interim Measures.

2. All provisions stated in the Interim Measures shall be strictly carried out. All provincial administrative competent departments shall issue announcements according to requirements on types, contents, terms and relevant processes of announcements provided in the Interim Measures to ensure the behavior of announcement are accurate, timely and objective. The administrative punishment decisions on illegal behaviors in tendering and bidding announced by relevant provincial administrative competent departments shall be reported to relevant administrative competent departments under the State Council.

3. All provincial administrative competent departments shall report to the administrative competent departments under the State Council about issues encountered in announcement in a timely manner.

National Development and Reform Commission

Ministry of Information Industry

Ministry of Supervision

Ministry of Finance

Ministry of Housing and Urban-Rural Development

Ministry of Transport

Ministry of Railways

Ministry of Water Resources

Ministry of Commerce

Information Centre Legislative Affairs Office of the State Council

June 18, 2008

Annex:

Interim Measures for Announcement of Records of Illegal Behaviors in Tendering and Bidding

Chapter 1 General Provisions

Article 1 The Measures is formulated pursuant to relevant laws and regulations such as Bidding Law in order to implement the Some Opinions of the General Office of the State Council on Further Regulating the Activities of Tendering and Bidding (Guo Ban Fa [2004] No.56), promote the construction of the tendering and bidding credit system, perfect the tendering and bidding faith-breaking punishment system, and regulate behaviors of agents concerned in tendering and bidding.

Article 2 The Measures is applicable to the announcement of records of illegal behaviors in tendering and bidding by agents concerned in tendering and bidding activities.

The agents concerned in tendering and bidding activities under the Measures refer to those who invite bid, bidders, bidding agencies as well as members of bid evaluation committees.

The records of illegal behaviors in tendering and bidding under the Measures refer to records of administrative punishment decisions on illegal behaviors of agents concerned in tendering and bidding during the process of relevant administrative competent departments performing their responsibilities by law.

Article 3 Relevant administrative competent departments under the State Council shall, according to their responsibilities prescribed, establish their platforms for announcement of records of illegal behaviors in tendering and bidding and be responsible for daily maintenance of the announcement platforms.

The National Development and Reform Commission formulates comprehensive policies and relevant provisions with respect to administration of announcement platforms together with other relevant administrative competent departments under the State Council.

Relevant administrative competent departments under provincial governments shall, according to their responsibilities prescribed, establish their platforms for announcement of records of illegal behaviors in tendering and bidding and be responsible for daily maintenance of the announcement platforms.

Article 4 The announcement of records of illegal behaviors in tendering and bidding shall comply with principles to be accurate, timely and objective.

Article 5 The announcement of records of illegal behaviors in tendering and bidding shall not involve records of state secrets, business secretes and personal privacies publicly. However, records of illegal behaviors involved business secrets and personal privacies which are agreed to be disclosed by holders of rights or deemed by administrative agencies that they may have major impact on public interests if not be disclosed, can be made public.

Chapter 2 Announcement of Records of Illegal Behaviors

Article 6 The administrative competent departments under the State Council and relevant administrative competent departments under provincial governments (hereafter referred as announcing departments) shall make announcement within 20 working days upon the making of decisions on administrative punishment on illegal behaviors in tendering and bidding.

The administrative punishment decisions on illegal behaviors in tendering and bidding announced by relevant administrative competent departments under provincial governments shall be reported to relevant administrative competent departments under the State Council.

Article 7 Administrative punishment decisions on illegal behaviors in tendering and bidding as follows shall be announced:

1.Warning;

2.Penalty;

3.Confiscation of illegal gains;

4.Suspension or cancellation of the qualification of bidding agency;

5.Cancellation of bidding qualification for participating in bidding projects that shall be bided in a certain period;

6.Cancellation of the qualification as a member of a bidding evaluation committee;

7.Suspension of the implementation of project or recovery of funds appropriated;

8.Suspension of arrangement of national construction funds;

9.Suspension of inspection and approval of construction projects;

10.Other administrative punishment decisions made by administrative competent departments by law.

Article 8 The basic contents of the announcement of records on illegal behaviors include: the titles (or names) of agents concerned in the tendering and bidding that are punished, illegal behaviors, bases for punishment, punishment decisions, handling agencies and etc.

Announcing departments can make announcement of administrative punishment decisions on illegal behaviors in tendering and bidding directly.

Article 9 The term of announcement of records on illegal behaviors lasts six months. Records shall be reserved in background upon expiration of announcement term.

With respect to administrative punishment decisions in terms of restriction on qualification (competency) of agents concerned in tendering and bidding by law, if the restriction term determined is longer than six months, the term of announcement subjects to the decision.

Article 10 The announcing departments are responsible for creating announcement platform information systems, undertaking addition, amendment and updating of recorded information data, and ensure the records on illegal behaviors announced to comply with the relevant contents of administrative punishment decisions.

The announcement platform information systems shall have the query function of history announcement records.

Article 11 The announcing departments shall properly keep materials including administrative punishment decisions on illegal behaviors in tendering and bidding, which are basis for announcement records, for filing and check.

Article 12 Where agents concerned in tending and bidding that are announced hold that the records in the announcement do not consist with the relevant contents of the administrative punishment decisions, they can provide written applications for alteration, together with relevant proofs to the announcing departments.

The announcement departments shall make check within five working days upon receipt of written applications. If records in the announcements do not consist with relevant contents in the administrative punishment decisions, they shall make alteration and inform the applicators; if records in the announcements consist with relevant contents in the administrative punishment decisions, they shall inform the applicators.

The announcement departments shall not stop announcement on records of illegal behaviors before reply.

Article 13 During the period of administrative reconsideration and proceedings of administrative punishment decisions, the announcing departments do not stop announcement on records of illegal behaviors by law, except those administrative punishment decisions stopped to be enforced by law.

Article 14 Where the original administrative punishment decisions are altered or cancelled by law, the announcing departments shall alter or cancel the announcements in a timely manner and make a declaration in announcement platforms.

Chapter 3 Supervision and Administration

Article 15 Relevant administrative competent departments shall enhance supervision and administration of agents concerned whose records of illegal behaviors in tendering and bidding are announced.

Article 16 The announcements of records of illegal behaviors in tendering and bidding shall be interlinked and mutually recognized for common use gradually; and a unified platform for announcement of records of illegal behaviors in tendering and bidding shall be established when conditions permit.

Article 17 The records of illegal behaviors in tendering and bidding that are announced shall be used as an important reference for activities including the qualification certification of bidding agencies, the qualification inspection of the bidding projects that shall be invited bid, the choose of bidding agencies, the recommendation and confirmation of bidders who win bids, the confirmation of members of bidding evaluation committees and the assessment of experts on bidding evaluation.

Article 18 Where relevant administrative competent departments as well as their staff members have behaviors of neglecting their duties, falsifying, playing favoritism and committing irregularities, their departments or competent agencies of higher level shall circulate notices of criticism on them and investigate responsibilities of direct persons responsible and relevant leaders according to laws and disciplines; those who commit crimes shall be sent to judicial agencies by law to bear criminal responsibilities.

Chapter 4 Supplementary Articles

Article 19 Development and Reform Commissions of all provinces, autonomous regions and municipalities directly under the Central Government can formulate specific implementing methods with relevant departments according to the Measures.

Article 20 The power of interpretation of the Measures rests with the National Development and Reform Commission and relevant departments under the State Council.

Article 21 The Measures takes effect as of Jan. 1, 2009.