Evaluation of Construction Environmental Capital Law (No.23) | About the Scope of Projects Must Be Tendered! The National Development and Reform Commission has a new reply.

On its official website, the National Development and Reform Commission has given a centralized reply and response to difficult questions about the scope of projects that must be tendered and the tendering and bidding industry. We have compiled the full text for the reference of relevant practitioners. The full text of the relevant documents is attached at the end of the text.

A: Hello, further <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The notice on the implementation of the work (NDRC regulations [2020] No. 770) stipulates that the projects within the scope of articles 2 to 4 of the provisions on projects subject to bidding (Decree No. 16 of 2018, hereinafter referred to as Decree No. 16) and the provisions on the scope of infrastructure and public utilities projects subject to bidding (NDRC regulations [2018] No. 843), if the estimated price of a single contract for the procurement of construction, goods and services does not meet the scale standard stipulated in Article 5 of Decree No. 16, the purchaser shall independently choose the procurement method according to law, and no unit or individual may interfere illegally; among them, if government procurement is involved, it shall be implemented in accordance with the laws and regulations on government procurement. Thank you for your concern and support for the development and reform work!

Reply Unit: Department of Regulations

A: Hello, further <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The notice on the implementation of the work (NDRC regulations [2020] No. 770) stipulates that the projects within the scope of articles 2 to 4 of the provisions on projects subject to bidding (Decree No. 16 of 2018, hereinafter referred to as Decree No. 16) and the provisions on the scope of infrastructure and public utilities projects subject to bidding (NDRC regulations [2018] No. 843), if the single procurement of survey, design, construction, supervision and important equipment and materials related to engineering construction respectively meet the corresponding single contract price estimation standards stipulated in Article 5 of Decree 16, the single procurement must be invited for bidding; The single procurement of the project that does not meet the above-mentioned corresponding standards does not belong to the scope of bidding required by Decree 16. The estimated price of the single contract for the construction of the project you are consulting is 3.1 million yuan, which is less than 4 million yuan, which does not fall within the scope of bidding required by Decree No. 16. Thank you for your concern and support for the development and reform work!

Reply Unit: Department of Regulations

A: Hello, "the estimated price of a single construction contract is above 4 million yuan" includes 4 million yuan. Thank you for your concern and support for the development and reform work!

Reply Unit: Price Division

A: Hello, About Doing Well Further <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The notice on the implementation of the work (NDRC regulations [2020] No. 770) stipulates that for projects within the scope of articles 2 to 4 of the provisions on Engineering projects subject to bidding (National Development and Reform Commission order No. 16 of 2018, hereinafter referred to as "order No. 16"), the employer shall, in accordance with the law, contract out all or part of the project and the goods and services related to the construction of the project, as long as one of the estimated prices of construction, goods, services and other parts of the general contract meets the corresponding standards stipulated in Article 5 of Decree No. 16, that is, the estimated price of the construction part 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 whole general contract shall be tendered. Thank you for your concern and support for the development and reform work!

Reply Unit: Department of Regulations

Article 9 of the Regulations on the Implementation of the the People's Republic of China Tendering and Bidding Law, except for the special circumstances stipulated in Article 66 of the Tendering and Bidding Law, where bidding may not be conducted, bidding may not be conducted under any of the following circumstances: (2) The purchaser can build, produce or provide on its own according to law.

Consultation content: 1. How to understand "the purchaser can build, produce or provide on his own according to law" and whether this "can" includes the "can" of the purchaser's subsidiary "? 2. Take the Development Group as an example. It has a construction subsidiary. If the Development Group raises its own funds and builds its own projects, can it directly entrust its wholly-owned or controlled subsidiaries to build them without bidding? If not, from the general common sense and truth, one cannot ask one's own family to do things, which is really incomprehensible and difficult to accept.

Reply: with regard to the provisions of item (II) of article 9 of the regulations on the implementation of the bidding law on "the purchaser can build, produce or provide on his own according to law", the following relevant requirements shall be met: first, the purchaser refers to a legal person or other organization that meets the qualification of a civil subject, excluding its related parent company, subsidiary company, and those with management or interest relationship, legal persons and other organizations with independent civil subject qualifications; second, the purchaser himself has the qualifications and capabilities for engineering construction, goods production or service provision; third, the purchaser must not only have the corresponding qualifications and capabilities, but also meet the statutory requirements. For work items that the purchaser cannot undertake at the same time in accordance with laws and regulations, the purchaser shall conduct bidding. The purchaser in this article refers to the project investor itself, not the other project owners entrusted by the investor, otherwise if any project through the entrustment of qualified project owners can not carry out bidding, will make the bidding system a mere formality.

1. Can several projects that should be subject to public bidding according to law be combined for only one bidding?

2. Can the project tenderee who should invite public bidding according to law entrust other institutions (non-bidding agencies) as tenderers (non-bidding agents) to conduct bidding?

Reply:

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

Question 2: The project owner may entrust other units as tenderers, such as agent construction and centralized bidding.

Answer: Article 6 of the "Electronic Tendering and Bidding Measures" stipulates that legally established tendering and bidding trading venues, tenderers, tendering agencies, and other legal person organizations established in accordance with the law may build and operate electronic tendering and bidding trading platforms according to industries and professional categories. The State encourages equal competition in electronic tendering and bidding trading platforms. The "Internet" Bidding and Procurement Action Plan (2017-2019) clearly proposes to actively guide social capital to build and operate an electronic bidding and bidding trading platform in accordance with the direction of marketization. At the same time, promote fair competition among trading platforms, shall not exclude or restrict the construction and operation of trading platforms by market entities, limit the number of docking trading platforms, and directly designate trading platforms for tenders.

Article 12, Article 3 of the "Tendering and Bidding Law" stipulates that "for projects that must be tendered according to law, if the tenderer handles the bidding matters on his own, he shall file with the relevant administrative supervision department". With regard to the approval and approval of projects that must be tendered in accordance with the law, Article 7 of the Regulations on the Implementation of Bidding has clearly stipulated that "...... the project approval and approval department shall promptly notify the relevant administrative supervision department of the scope of bidding, the method of bidding and the form of bidding organization determined by the approval and approval". May I ask which administrative supervision department should be filed with if the filing system project that must be tendered according to law takes the form of self-tendering?

Answer: According to Article 7 of the "Regulations on the Implementation of the Bidding Law", the filing project does not need to approve the bidding plan, so it is not necessary to go to the project filing department for the filing of self-bidding. According to the third paragraph of Article 12 of the "Tendering and Bidding Law", "For projects that must be tendered according to law, if the tenderer handles the tendering matters on his own, he shall file with the relevant administrative supervision department". According to Article 4 of the "Regulations on the Implementation of the Tendering and Bidding Law", it shall be filed with the relevant administrative supervision department for the record.

Can a subsidiary of a state-owned enterprise participate fairly in the bidding organized by the state-owned enterprise as a bidder?

Answer: The first paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates that legal persons, other organizations or individuals that have an interest in the tenderer and may affect the fairness of the bidding shall not participate in the bidding. This article does not prohibit legal persons, other organizations or individuals who have an interest in the tenderer to participate in the bidding. The circumstances that constitute the first paragraph of this article need to meet the two conditions of "the existence of an interest" and "may affect the fairness of the bidding. 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, the "interest relationship" does not affect its fairness, it can participate in the bidding.

According to the notice of the general office of the national development and Reform Commission on further improving the implementation of the provisions on engineering projects that must be invited for bidding and the provisions on the scope of infrastructure and public utility projects that must be invited for bidding (No. 770 of the development and Reform Office Regulations [2020]), the third paragraph of Article 1 states: "For items that are not clearly listed in Item (III) of the first paragraph of Article 5 of Order No. 16 and items that are not clearly listed in Article 2 of Document No. 843, no compulsory bidding shall be required." May I ask: If the construction drawing review, cost consultation, third-party monitoring, monitoring and other services in the construction project are fully invested by the finance and the above service fees are estimated to exceed 1 million yuan, can the owner unit choose not to invite bids.

Reply: On Further Doing Well <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The notice on the implementation of the work (NDRC regulations [2020] No. 770) stipulates that if there is no basis for laws, administrative regulations or the provisions of the State Council, bidding shall not be compulsory for the service items specified in item (III) of paragraph 1 of Article 5 of Decree No. 16. Construction drawing review, cost consultation, and third-party testing services are not included in the listed regulations, and are not items that must be tendered, but those involving government procurement shall be implemented in accordance with government procurement laws and regulations.

Document No. 20021980 of the Interim Measures for the Administration of Bidding Agency Service Charges was listed as invalid in the official document issued on January 1, 2016. May I ask who should pay the bidding agency service fee and according to which regulation?

Reply: The original "Interim Measures for the Administration of Bidding Agency Service Charges" (Pricing [2002] No. 1980) has been abolished by the "Decision on Repealing Some Regulations and Normative Documents" (Order No. 31 of the National Development and Reform Commission) issued on January 1, 2016. At present, there are no mandatory provisions on the subject of payment of bidding agency service fees at the national level. The bidding agency service fee shall be implemented by the tenderer, the bidding agency and the bidder in accordance with the agreed manner.

State-owned enterprise projects and buildings and structures of new construction, reconstruction, expansion of separate 10 million decoration projects, whether it is necessary to tender projects.

Answer: According to Article 2 of the "Regulations on the Implementation of the Bidding and Bidding Law", the term "construction projects" mentioned in Article 3 of the Bidding and Bidding Law refers to projects and goods and services related to project construction. The term "project" as mentioned in the preceding paragraph refers to a construction project, including the new construction, alteration and expansion of buildings and structures and their related decoration, demolition and repair. Accordingly, the project you are consulting does not belong to the project that must be tendered according to law as stipulated in the Tendering and Bidding Law.

Does the "procurement of important equipment and materials related to the construction of the project" mentioned in Article 5 of the Regulations on Projects Subject to Bidding include the procurement of non-A-supplied materials by state-owned construction enterprises? If a state-owned construction enterprise undertakes a project in accordance with Articles 2 to 4, if the construction enterprise implements the procurement of important equipment and materials, must the bidding be conducted?

Answer: According to Article 29 of the "Regulations on the Implementation of the Bidding and Bidding Law", the tenderee may, in accordance with the law, implement general contracting bidding for all or part of the project and the goods and services related to the construction of the project. If the projects, goods and services included in the scope of the general contract in the form of provisional valuation fall within the scope of the project that must be tendered according to law and reach the scale standard prescribed by the state, the tender shall be carried out according to law. The Opinions of the General Office of the State Council on Promoting the Sustainable and Healthy Development of the Construction Industry (No. 19 [2017] of the State Council) stipulates that, in addition to projects that are included in the scope of the general project contract in the form of provisional valuation and must be tendered in accordance with the law, the general project contracting unit may directly contract out other professional businesses covered by the general contract. Accordingly, the general contracting unit of state-owned projects may subcontract directly, but when subcontracting works, goods and services included in the scope of the general contracting in the form of provisional valuation, if they fall within the scope of the project that must be tendered according to law and reach the scale standard prescribed by the state, they shall be tendered according to law.

The Bidding Law and the Regulations for the Implementation of the Bidding Law stipulate that the period for the sale of bidding documents shall not be less than 5 days, and shall not be less than 20 days from the date of issuance of the bidding documents to the date of the deadline for the submission of the bidding documents by the bidders. Since we all implement electronic bidding now, the bidding style is obtained by potential bidders on the online trading platform, and there is no charge. We have an idea, that is, there is no limit on the time for obtaining bidding documents. Potential bidders can obtain bidding documents from the online trading platform before the deadline for bidding. However, the deadline for bidding is still not less than 20 days from the date when potential bidders can obtain bidding documents.

Reply: Article 16 of the Regulations on the Implementation of the Bidding and Bidding Law stipulates that the bidding documents shall be sold for not less than 5 days, in order to ensure that potential bidders have enough time to obtain the bidding documents to ensure the competitive effect of bidding and bidding. Therefore, in order to attract more potential bidders to participate in bidding, the tenderer shall, when determining the pre-qualification documents or the sale period of the bidding documents for a specific bidding project, comprehensively consider the holidays, the place of sale of the documents, the traffic conditions and the geographical scope of the potential bidders, and stipulate a reasonable period of not less than 5 days in the bidding announcement.

In the bidding process, after the evaluation of the bid, the tenderer issued the winning candidate publicity, publicity after the end of the announcement of the winning bid. What is the difference between the announcement of the winning candidate and the announcement of the winning bid? What are the legal effects of each?

Reply: According to Article 54 of the Regulations on the Implementation of the Bidding and Bidding Law, for projects that must be tendered according to law, the tenderee shall publicize the successful candidate within 3 days from the date of receipt of the bid evaluation report, and the publicity period shall not be less than 3 days. If a bidder or other interested party has any objection to the bid evaluation results of a project that must be tendered according to law, it shall be raised during the publicity period of the successful candidate. The tenderer shall make a 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 publicity of the results of the winning bid is informative publicity, that is, the results of the winning bid are announced to the public. Both the publicity of the winning candidate and the publicity of the winning result are systems for better social supervision. The difference between the two is that the time point of disclosing relevant information 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 publicity period of the winning candidate, the bidder or other interested parties can raise objections in accordance with the law. After the winning result is publicized, no objection can be raised.

For the government-invested construction project bidding that has been confirmed by the construction unit and approved by the project, may I ask: 1. The tenderee only refers to the project construction unit, and does it also include the local government that manages the construction order? 2. Can local governments or relevant departments and departments formulate more detailed bidding document texts or bid evaluation standards and methods on the premise that they do not conflict with the standard bidding documents issued by the state or the competent industry departments of the State Council, which should be used by the tenderee of the government-invested construction project?

Answer: Question 1: Article 8 of the "Bidding and Bidding Law" stipulates that a tenderer is a legal person or other organization that proposes a bidding project and conducts bidding in accordance with the provisions of this law.

Question 2: On the premise that the local government does not conflict with the standard bidding documents issued by the state or the competent industry department of the State Council, it can formulate more detailed standard document texts for the tenderers of government-invested construction projects in the region, but it must not illegally interfere in bidding activities, and must not unreasonably restrict the autonomy of tenderers in this way.

According to the provisions of Article 6, the publicity of successful candidates for projects that must be tendered according to law shall include the following contents: (1) the ranking, name, bid quotation, quality, construction period (delivery date) and bid evaluation of successful candidates; (II) the name of the project leader and the name and number of relevant certificates promised by the successful candidate in accordance with the requirements of the bidding documents; (III) the qualifications and ability of the successful candidate to respond to the requirements of the bidding documents; (IV) channels and ways of objection; (V) other contents as specified in the bidding documents. The name of the winning bidder shall be clearly stated in the publicity of the results of the winning bid for a project subject to tender in accordance with the law. The questions are as follows: 1. In the third paragraph of Article 6, it is stipulated to publicize the qualification conditions for the winning bidder to respond to the requirements of the bidding documents. What documents do these qualification conditions specifically include? Please list them in detail to explain? Is a copy of the contract included to demonstrate performance? Does it include relevant documents such as professional certificates of technicians? 2. If it is necessary to publicize a copy of the performance contract in the qualification conditions required to respond to the bidding documents, will it infringe the bidder's trade secrets? 3. In addition to publishing the basic contents such as total score, ranking and quotation, is it necessary to publicize the scores of each sub-item scored by the bid evaluation committee? Suggestion: as a state-owned enterprise procurement, we hope to achieve standardization and transparency in the publicity of bidding, so we have always carried out relevant publicity in accordance with the laws and regulations of the state, but the publicity content stipulated in some provisions is too general. If there is less publicity, we are afraid of affecting the right to know of bidders and the public, and if there is too much publicity, we are afraid of infringing upon the trade secrets of the winning bidder. Therefore, I hope to be able to clarify which information (specifically listed) 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 conditions for the successful candidate to respond to the requirements of the bidding documents include which documents depend on the requirements of the specific bidding project and cannot be uniformly stipulated through legislation.

Question 2: The Administrative Measures for the Release of Bidding Announcements and Public Information (Order No. 10 of the National Development and Reform Commission) only requires the disclosure of the qualifications and abilities of the successful candidates to respond to the requirements of the bidding documents, and does not require the disclosure of copies of contracts and other supporting documents to prove their performance.

Question 3: As to whether it is necessary to publicize the scores of each item scored by the bid evaluation committee, the current practices vary from place to place, and there are no unified regulations at the national level. However, if the tenderer voluntarily discloses it 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 winning candidate, but the list of members of the bid evaluation committee shall be kept confidential.

Article 8 of the "Measures for Tendering and Bidding for Construction Projects" (Decree No. 30 of the Seven Ministries and Commissions [2013]) (IV) the understanding of the provisions of "having design drawings and technical data required for bidding. What is the design depth drawing, preliminary design drawing or construction drawing design drawing in this provision? When the construction drawing design document is not examined and approved, does the bidding of preliminary design drawing for engineering construction project conform to this provision?

Reply: According to Article 26 of the Regulations on the Administration of Survey and Design of Construction Projects, the preparation of preliminary design documents shall meet the needs of the preparation of construction bidding documents, the ordering of major equipment and materials and the preparation of construction drawing design documents. The preparation of construction drawing design documents shall meet the needs of equipment and materials procurement, non-standard equipment production and construction, and indicate the reasonable service life of the construction project. The "Measures for Tendering and Bidding for Construction Projects" (Decree No. 30 of the Seven Ministries) does not specify the design depth of "design drawings". The tenderee may use preliminary design drawings or construction drawing design documents for bidding according to the relevant regulations of the industry to which the project belongs and the actual needs of the project.

Notice of the General Office of the General Office of the General Administration of Market Supervision of the National Development and Reform Commission on further standardizing the examination of business qualifications in the process of tendering and bidding. Regulations No. 2020 No. 727 stipulates that "tenderers shall not use the business scope recorded in the business license as the basis for determining the business qualification of bidders in the pre-qualification announcement, pre-qualification documents, bidding announcement and bidding documents of bidding projects, the business scope recorded in the bidder's business license shall not adopt a specific expression or clearly record a specific business scope item as a condition for bidding, bonus points or winning the bid, and shall not be deemed invalid on the grounds that the bidding project exceeds the business scope recorded in the bidder's business license." Does the introduction of this document mean that no medical device business license or record operating enterprises can do Class II or Class III medical devices? If the bidding document does not specify, does it mean that all enterprises can also do Class II or Class III medical devices? If so, what is the significance of administrative licensing and supervision of medical devices?

Reply: the notice on further standardizing the examination of business qualifications of enterprises in the process of tendering and bidding (No. 727 of the development and reform office [2020]) stipulates that if the bidding project has clear requirements for the business qualifications of bidders, it shall examine whether they have been granted administrative license and obtained relevant qualifications. The introduction of this document does not mean that enterprises without medical business equipment business license or record can produce Class II and Class III medical devices. For a specific industry that needs to obtain an administrative license or record in accordance with the law, it shall first obtain the relevant license or complete the record.

After the Ministry of Housing and Urban-Rural Development cancels the qualification of landscaping, it is also required that the qualification of urban landscaping enterprises or the general contracting of municipal public works construction shall not be required in any way as the conditions for contracting the construction business of landscaping projects. For greening project construction tenderers are using the scope of business contains "landscaping", the bidder requirements. No. 727 requirements can not be required. That for the greening project, artificial afforestation project how to request the bidder.

Reply: The Notice on Further Regulating the Examination of Business Qualification of Enterprises in the Process of Tendering and Bidding (No. 727 of the Development and Reform Office Regulations [2020]) stipulates that if a tendering project has clear requirements on the qualifications of bidders, it shall examine whether or not it has been granted an administrative license and obtained relevant qualifications, and shall not be replaced by the examination of the business scope of the business license, or the specific content of the administrative license approval document clearly recorded in the business scope of the business license as the review standard. For industries that do not implement qualification management, the tenderee may make requirements for bidders in terms of performance and other aspects according to actual needs.

Article 70 of the "Regulations for the Implementation of the the People's Republic of China Bidding and Bidding Law" stipulates: "The tenderer of a project that must be tendered according to law does not form a bid evaluation committee in accordance with the regulations..." Does the "provisions" in the clause include the provisions of normative documents and bidding documents in addition to the provisions of laws and regulations?

Reply: The "provisions" in Article 70 of the "Regulations on the Implementation of the Bidding and Bidding Law of the the People's Republic of China" refer to the statutory requirements for the establishment of a bid evaluation committee in accordance with the law, mainly including the "Bidding and Bidding Law", "Implementation Regulations of the Bidding and Bidding Law", and "Interim Provisions on Bid Evaluation Committees and Bid Evaluation Methods" and other departmental regulations and administrative normative documents, excluding bidding documents.

As mentioned in the "Regulations on Engineering Projects Subject to Bidding" (National Development and Reform Commission Order No. 16 of 2018), "For the procurement of survey, design, supervision and other services, if the estimated price of a single contract is more than 1 million yuan, bidding must be conducted." Can the "estimated price of a single contract" here help to clarify how to understand it? The estimated price generally refers to the amount in the preliminary design estimate, the estimated price is preceded by the word contract, that is, how to understand the estimated price of the contract? For example, the supervision fee is calculated to be 1.5 million yuan according to the charging standard, which exceeds 1 million yuan. At this time, is this 1.5 million yuan understood as the estimated contract price? Let's take another example. There is no charging standard for the safety impact assessment fee, and the reserve price can only be determined through market inquiry. If the price obtained through inquiry is 1.5 million, can this price also be understood as the estimated contract price? Does the estimated contract price refer to the amount that has not been floated after the calculation of the fee standard or the amount that has not been floated after the market inquiry? Please help the leadership clear, thank you!

Response: The "estimated contract price" in the Provisions on Projects Subject to Bidding (Order No. 16 of 2018 of the National Development and Reform Commission) refers to the project contract amount reasonably estimated by the purchaser based on factors such as preliminary design estimates, relevant pricing provisions and market price levels. In the absence of pricing provisions, the purchaser may reasonably estimate the project contract amount according to the market price level based on the amount of the preliminary design estimate.

Article 2 of the Provisions on Engineering Projects Subject to Bidding (Order No. 16 of 2018 of the National Development and Reform Commission): "Projects that use all or part of state-owned funds for investment or state financing include: ...... Projects that (II) use funds from state-owned enterprises and institutions, and the funds occupy a controlling or dominant position."

(1) The "use of funds of state-owned enterprises and institutions" stipulated in the second item of Article 2 of Order No. 16, in which "state-owned enterprises" only refer to wholly-owned state-owned enterprises or also include state-controlled enterprises?

(2) The "holding or dominant position" in Item (II) of No. 770 refers to the understanding of the controlling shareholder and the actual controller in Article 216 of the Company Law, that is, although the amount of capital contribution or the proportion of shares held is less than 50%, however, shareholders who, in accordance with their capital contributions or the shares they hold, have sufficient voting rights to have a significant impact on the resolutions of shareholders' meetings and general meetings '...... "should be understood? Does it mean that the voting rights enjoyed by state-owned enterprises in accordance with the funds invested in the project are sufficient to have a significant impact on the resolution on the construction of the project? For example, in an engineering construction project jointly invested by a state-owned holding enterprise (51% of the state-owned equity) and a foreign-funded enterprise, the state-owned holding enterprise contributes 60% and the foreign-funded enterprise contributes 40%. Although the project does not belong to the situation that the funds invested by the state-owned enterprise account for more than 50% of the total project funds after conversion according to the proportion of state-owned equity, however, since the state-controlled enterprise accounts for 60% of the total investment in the project, the voting rights it enjoys are enough to have a significant impact on the resolution on the construction of the project, so the project is still a project that must be tendered?

reply: regarding question one, the "state-owned enterprises" in the "use of funds of state-owned enterprises and institutions" also include state-controlled enterprises.

On question 2, "on further doing a good job." <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The notice on the implementation of the work (NDRC regulations [2020] No. 770) stipulates that "occupying a controlling or dominant position" in item (II) of the provisions on Engineering projects subject to bidding (National Development and Reform Commission order No. 16 of 2018, hereinafter referred to as "order No. 16") shall be implemented with reference to the understanding of Article 216 of the Company Law on controlling shareholders and actual controllers, that is, "shareholders whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares account for more than 50% of the total share capital of a joint stock limited company; although the capital contribution or the proportion of shares held is less than 50%, but according to their capital contribution or holdings Shareholders whose voting rights in the shares are sufficient to have a significant impact on the resolutions of the shareholders meeting and the general meeting of shareholders". In your example, the voting rights enjoyed by Chinese funds for the project are enough to have a significant impact on the resolution on the construction of the project, which belongs to the "dominant position of state-owned funds". For example, if the individual procurement of survey, design, construction, supervision and important equipment and materials related to the project construction respectively meet the corresponding single contract price estimation standards stipulated in Article 5 of Decree No. 16, the individual procurement must be invited for bidding.

According to the current bidding laws and regulations, bidding projects are generally divided into three categories: service (survey, design, cost consulting, supervision, evaluation, etc.), construction and materials, and the bidding limits are 1 million, 4 million and 2 million respectively. What kind of general contracting (I. e. EPC, including survey and design, construction and materials) should belong to, and how should the quota be determined?

Reply: On Further Doing Well <必须招标的工程项目规定> and <必须招标的基础设施和公用事业项目范围规定> The Notice of Implementation (NDRC Regulations [2020] No. 770) stipulates that for projects within the scope of Articles 2 to 4 of the Provisions on Engineering Projects Subject to Bidding (National Development and Reform Commission Decree No. 16 of 2018, hereinafter referred to as "Decree No. 16"), the employer shall, in accordance with the law, contract out all or part of the project and the goods and services related to the construction of the project, in the estimated price of construction, goods, services and other parts of the general contract, as long as one of them meets the corresponding standards stipulated in Article 5 of Decree 16, that is, the estimated price of the construction part 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, bidding shall be conducted.

On March 30, 2018, the National Development and Reform Commission issued the regulations on Engineering projects that must be tendered (decree No. 16 of the National Development and Reform Commission), which greatly revised the 18-year-old regulations on the scope and scale of bidding for Engineering Construction projects! On June 6, 2018, five more categories will be added to the projects that must be invited for bidding. Railways, highways, pipelines, urban rail transit, etc., must be tendered.

Scope of infrastructure and utilities projects that must be tendered

Article 1 In order to clarify the scope of large-scale infrastructure and public utility projects that must be invited for bidding, these Provisions are formulated in accordance with the Law on the People's Republic of China Bidding and Bidding and the Provisions on Engineering Projects that Must Invitation for Bidding.

Article 2 For 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 Article 2 and Article 3 of the Provisions on Engineering Projects Subject to Bidding, the specific scope of bidding must include:

(I) coal, oil, natural gas, electricity, new energy and other energy infrastructure projects;

(II) transportation infrastructure projects such as railways, highways, pipelines, water transportation, public aviation and A1 general airports;

(III) telecommunications hubs, communications information networks and other communications infrastructure projects;

(IV) water conservancy infrastructure projects such as flood control, irrigation, drainage, and water diversion (supply);

(V) urban construction projects such as urban rail transit.

Article 3 The present Provisions shall come into force as of June 6, 2018.

Decree No. 16 of the National Development and Reform Commission:

Provisions on Engineering Projects Subject to Bidding

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

Article 2 Projects that are wholly or partially invested by State-owned funds or financed by the State include:

Projects that (I) use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment;

Projects that (II) use the funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position.

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

(I) projects that use loans and aid funds from international organizations such as the World Bank and the Asian Development Bank;

(II) projects that use loans and aid funds from foreign governments and their agencies.

Article 4 For 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 regulations, the specific scope of bidding must be determined by the development and reform department of the State Council in conjunction with relevant departments of the State Council. The principle of necessity and strict limitation is formulated and submitted to the State Council for approval.

Article 5 For projects within the scope of Articles 2 to 4 of these Provisions, if 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:

The estimated price of (I) construction single contract is above 4 million yuan;

For the procurement of important (II) equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan;

For the procurement of (III) survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan. For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited.

Article 6 The present Provisions shall come into force as of June 1, 2018.