出口商品配额招标办法

对外贸易经济合作部令[2001]年第11号
(Promulgated on 20 December 2001 and effective as of 1 January 2002.)
颁布日期：20011220 　实施日期：20020101 　颁布单位：对外贸易经济合作部

PART ONE　GENERAL PROVISIONS

Article 1　These Procedures are formulated in accordance with the PRC, Foreign Trade Law and PRC, Administration of Import and Export of Goods Regulations in order to perfect the administration system for export commodity quotas, to establish a mechanism for fair competition, to protect overall State interests and the legal rights and interests of export enterprises, and to safeguard the proper operation of foreign trade.

Article 2　Invitation to tender may be implemented on export commodities that are subject to quota administration. Export enterprises may, through the voluntary submission of competitively priced tenders, win upon consideration, and use, the State-designated export commodity quotas.

Article 3　The Ministry of Foreign Trade and Economic Cooperation (MOFTEC) shall implement unified administration of invitation to tender for export commodity quotas, and shall be responsible for deciding and announcing the types of tender commodities and the total quota for tender commodities.

Article 4　Invitation to tender for export commodity quotas shall follow the principle of "efficient, fair, open and equal competition".

Article 5　These Procedures apply to tender commodities exported through any form of trade to the global market, including such trading methods as ordinary trade, processing of materials purchased from foreign countries, processing on order, barter trade, border trade and compensation trade, and through contracted projects and export of labour, except where other State Council provisions apply.

Article 6　The principles on which a tender commodity is designated are:

1. it is a staple natural recourse commodity which cannot be reproduced;

2. it is a commodity which occupies a leading position on the international market and for which changes in price have little effect on volume of exports;

3. it is a commodity for which supply exceeds demand, over which management is highly decentralized, of which there is frequent competitive selling at low prices, and which is subject to foreign anti-dumping litigation; or

4. it is a commodity that needs to be subject to export quota administration according to the multilateral and bilateral agreements signed between China and the country/countries imposing a quota.

PART TWO　ADMINISTRATION ORGANIZATIONS FOR INVITATION TO TENDER

Article 7　MOFTEC shall be responsible for leading and supervising invitation to tender through the tender committee for invitation to tender for export commodity quotas (the Tender Committee). The Tender Committee shall be responsible to MOFTEC. The Tender Committee shall be composed of the leader of MOFTEC and personnel of relevant departments and bureaux.

Article 8　The Tender Committee shall carry out the following duties:

1. in accordance with the situation regarding different commodities, it shall decide the number of times of invitation to tender, the size of the quota for each invitation to tender, the form of invitation to tender, and the proportion of the total quota each form of invitation to tender will represent;

2. it shall examine and approve specific programmes for invitations to tender for export commodity quotas, take charge of the opening of tenders and the evaluation of tenders, and examine and approve the winning results of invitations to tender for quotas;

3. it shall promulgate all types of circulars, announcements, decisions, etc. on invitations to tender for quotas;

4. it shall accept files reported to it by tender offices of cases of enterprises handing over quotas to the higher authorities or transferring and accepting quotas;

5. it shall examine and investigate the collection of winning tender guarantee sums and winning tender sums, and the utilization of quotas; and

6. it shall decide the list of enterprises to submit tenders in accordance with the qualifications required.

The MOFTEC Department of General Business shall be responsible for the day-to-day work of the Tender Committee.

Article 9　The Tender Committee shall, in accordance with the type of commodity subject to tender, set up tender offices for invitation to tender for export commodity quotas (Tender Office(s)) at the relevant import and export chambers of commerce.

A Tender Office shall be responsible for the actual implementation of invitation to tender. A Tender Office shall be composed of representatives from the relevant import and export chambers of commerce, from the China Foreign Investment Enterprises Association and from the relevant industries coordination departments. The Tender Office shall be responsible to the Tender Committee.

The relevant import and export chambers of commerce shall be responsible for the day-to-day work of the Tender Offices.

Article 10　The duties of Tender Office are: drawing up specific programmes for invitation to tender for export commodity quotas with reference to the opinions from the industry; reviewing and examining the list of enterprises to submit tenders in accordance with the qualifications required to submit tender; participating in the opening and evaluation of tenders; checking that the enterprises have paid the winning tender guarantee sum and the winning tender sum; accepting quotas handed over by enterprises to the higher authorities, handling and approving applications by enterprises to transfer quotas; following up and understanding utilization by enterprises of quotas and licences and export of tender commodities and market changes, and reporting the afore-mentioned matters to the Tender Committee in a timely manner; printing in accordance with a unified form and issuing in accordance with regulations documents that certify the winning of tenders, and handling other matters related to invitation to tender handed over to them by the Tender Committee.

PART THREE　QUALIFICATIONS TO SUBMIT TENDERS

Article 11　Qualifications to submit tenders

Invitation to tender for export commodity quotas shall take the form of open tender or negotiated tender. Different methods of invitation to tender can be adopted for different commodities.

All types of export enterprises (including foreign investment enterprises) that have import and export business qualifications, that are registered with administration departments for industry and commerce, that belong to the relevant import and export chambers of commerce (or the China Foreign Investment Enterprises Association in the case of foreign investment enterprises), and that have a specific volume of export and of export supply of the relevant commodities, that have registered with the relevant Tender Office and also fulfil the criteria to tender can submit tenders. The qualifications required to submit tenders in open tenders and negotiated tenders for different commodities shall be decided by MOFTEC separately in accordance with these Procedures.

Article 12　Examination of qualifications to submit tenders

The foreign trade commissions, offices or bureaux of all provinces, autonomous regions, municipalities directly under the central government and municipalities with an independent development plan (Local Departments in charge of Foreign Trade) shall handle the initial examination of the qualifications of enterprises in their area that submit tenders and provide the relevant information, in accordance with the requests of the Tender Committee. Tender Offices shall review the qualifications of enterprises that submit tenders within the stipulated time, and shall report the review result and the relevant information to the Tender Committee for ratification.

Article 13　The export record of enterprises submitting tenders shall be decided on the basis of the Customs statistics.

PART FOUR　RULES AND PROCEDURES FOR EVALUATION OF TENDERS

Article 14　The Tender Committee shall take charge of invitation to tender for export commodity quotas.

Article 15　Electronic tender documents shall be treated as invalid in any one of the following circumstances:

1. if the enterprise itself applies to the Tender Office for the tender document to be rendered invalid before the opening of tenders;

2. if the tender document arrives after the stipulated cut-off date for submission;

3. if a single enterprise successfully submits two (including two) or more tender documents before the stipulated time, regardless of whether the content is identical; or

4. any other circumstances in which the tender is treated to be invalid in accordance with these Procedures.

Article 16　An enterprise that submits a tender shall decide the tender price by itself at the time of open tender. The Tender Committee may, in light of the actual circumstances, determine and announce before the event the minimum tender price.

Where the tender price of an enterprise is too high, and has clearly deviated from the price pattern, the tender document shall be treated as invalid.

The Tender Committee may determine the minimum tender prices in negotiated tenders with reference to the circumstances upon consideration of the average profit on exports of that particular commodity, the market conditions for the export commodity, the winning tender price for quotas in previous years, and other factors.

Article 17　In order to prevent quotas won by tender being too centralized or too widely spread, the Tender Committee shall in accordance with the actual circumstances set maximum and minimum sizes for tenders. Tenders in excess of the maximum or below the minimum shall be regarded as invalid.

Article 18　Enterprises must submit tenders in the form of electronic tender documents before the stipulated time. When submitting tenders the electronic data shall be regarded as the standard. Enterprises can submit only one tender for a single type of commodity where the same method of invitation to tender is used. Where the enterprise fails to send an electronic tender document before the stipulated time, it will be regarded as giving up the qualification to submit tender.

Article 19　Deciding the winning enterprises

Open tender: the tender prices of all qualified tendering enterprises shall be arranged in order from high to low and the size of the tenders added up from top to bottom. When the sum of the sizes of tenders equals the total amount put to tender, those enterprises whose tenders have been added together to make the total (total amount put to tender) shall be the winning enterprises.

If the total size of tenders submitted by the enterprises in the position of the lowest winning tender prices exceeds the amount of quota remaining, all the enterprises in that position shall be winning enterprises.

Negotiated tender: all enterprises submitting tenders of a price not lower than the minimum tender price stipulated by the Tender Committee shall be winning enterprises.

Article 20　Deciding the price and size of winning tenders

1. The price of the winning tender of the enterprise in an open tender shall be the price of the tender submitted. The price of the winning tender in a negotiated tender shall be determined according to the actual circumstances of different commodities by the Tender Committee separately.

2. Deciding the size of winning tenders

(1) In open tenders, the size of tender won by a winning enterprise shall be the size of tender submitted. If the sum of the tenders of the enterprises in the position of the lowest winning tender price exceeds the amount of quota remaining, the remaining quota shall be allocated to these enterprises in accordance with the proportional size of the tenders submitted. If the size of tender awarded is lower than the minimum size of tender to be submitted, it shall be treated as a losing tender;

(2) The size of winning tenders in negotiated tender:

1) The size of winning tender of an enterprise shall be decided in accordance with the following formula:

Size of winning tender of an enterprise =

amount of tender submitted by that enterprise

(tender quota price x tender size)

total put to tender x ——

total tender amount (tender quota price x tender size)

submitted by all winning enterprises

or 2) The maximum size of tender won by an enterprise shall be the size of the tender submitted by that enterprise.

The total size of tenders won by a foreign investment enterprise in a year shall be limited to the scale of export ratified by MOFTEC.

Article 21　The Tender Committee shall publish tender notices in the designated press and media.

Article 22　Tender Offices should announce the initial results within the stipulated time after evaluation of tenders has concluded. If enterprises submitting tenders have any queries, these can be raised with the Tender Office within two working days of the announcement of the initial results. Tender Offices must report the initial results to the Tender Committee for ratification within three working days of the date of announcement.

Article 23　Once the Tender Committee has ratified the results, it must notify the Tender Office in a timely manner and announce the list of winning enterprises.

PART FIVE　WINNING TENDER SUM

Article 24　Payment of the winning tender sum

An enterprise winning a tender in accordance with the rules for evaluation of tenders must pay a winning tender guarantee sum and a winning tender sum. The revenue shall be paid to a central foreign trade development fund.

The Tender Committee shall open a special account in a designated bank to be used for winning tender guarantee sums and winning tender sums. The relevant import and export chambers of commerce can be appointed to do the detailed work.

Tender Offices must report to the Tender Committee whether the winning tender guarantee sum has been received within five working days of the cut-off date for payment.

Article 25　Winning enterprises must pay the winning tender guarantee sum and the winning tender sum in accordance with the following provisions. Another enterprise may not pay on their behalf:

1. Winning enterprises must remit the winning tender guarantee sum within the stipulated time to the designated bank account in such form as a cheque, money order or remittance. The precise proportion of the winning tender guarantee sum shall be decided by the Tender Committee separately in accordance with the situation regarding that particular commodity. The guarantee sum shall not be refunded regardless of whether the quota is utilized.

2. Before applying for each export licence, the winning enterprises shall pay the balance of the winning tender sum corresponding to the quota into a designated bank account in accordance with the size of the quota.

Article 26　Once the Tender Office has received the winning tender sum paid by the enterprise, it shall issue documents that certify the application for export licence for quota tender commodities to the enterprise.

PART SIX　HANDING OVER, TRANSFER AND TAKING BACK OF QUOTAS

Article 27　If a winning enterprise fails to use or has not fully utilized the quota won by tender, it shall hand it over to the higher authorities or transfer it in accordance with the stipulated procedures.

Article 28　The Tender Committee shall decide the time limit for handing over tender quotas of export commodities in accordance with the circumstances regarding different commodities.

Article 29　A winning enterprise must pay into the designated bank account the winning tender sum in accordance with the proportion stipulated by the Tender Committee before it applies for a transfer of the tender quota of export commodity. The enterprise receiving the transferred quota and the enterprise transferring it must submit a quota transfer application agreed by both parties to the Tender Office for examination and approval. The enterprise receiving the quota must be qualified to submit tenders. The Tender Committee shall decide the procedures for encouraging and restricting the transfer and receipt of the quota won by tender for different commodities separately.

Article 30　The Tender Committee shall regard the quota won by tender for which the total amount of winning tender sum has not been paid within the time limit as unable to use, take it back, and shall not return the winning tender guarantee sum already paid. The Tender Committee shall specify the date for taking back the quota separately, and the specific proportion of the quotas taken back shall be calculated into the waste rate as wasted quotas.

Article 31　The Tender Committee can decide to re-invite tenders for quotas taken back, handed over to the higher authorities or other remaining quotas, dependent on the size, or can adopt some other methods of disposing of them with the approval of MOFTEC.

PART SEVEN　EXPORT LICENCES

Article 32　Quotas won by tender are valid for that year. Once an enterprise has obtained a quota, it must apply for an export licence from the designated organization within the period in which the quota is valid.

The names of enterprises winning quotas by tender and the sizes of the quotas won shall be examined and approved by MOFTEC and issued to the relevant licence-issuing authorities and Local Departments in charge of Foreign Trade.

Article 33　All relevant licence-issuing authorities shall issue export licences in accordance with the Administration of Export Licence Provisions and the documents that certify the winning of tender issued by the relevant Tender Offices.

PART EIGHT　PENALTIES

Article 34　MOFTEC shall impose administrative penalty on individuals, groups or enterprises that disrupt invitation to tender in violation of these Procedures in accordance with the seriousness of the case. Acts that constitute a crime shall be handed over to the judicial departments for prosecution.

Article 35　All enterprises and individuals have the right to report or complain about corrupt practices in violation of these Procedures that are discovered in the course of invitation to tender for quotas. In the case of such practices, once the facts have been verified, MOFTEC has the right to reject the results of that invitation to tender.

Article 36　MOFTEC shall impose penalty on members of the Tender Committee and of Tender Offices that violate these Procedures in accordance with the seriousness of the case, until the case is handed over to judicial authorities for prosecution.

Article 37　The Tender Committee shall take back the quotas won by enterprises that disrupt invitation to tender by conspiring over tenders, falsely reporting qualification to submit tenders or by other means, and shall revoke their qualification to submit tenders for quotas of that commodity for one to three years.

Article 38　The Tender Committee shall take back the quotas won by enterprises that do not pay the winning tender guarantee sum in accordance with regulations, and shall revoke their qualification to submit tenders for the relevant commodity for one to two years.

Article 39　Quotas which the enterprise has not handed over or transferred in accordance with regulations, and that are not drawn before the cut-off date of the valid period of the quota, or those that are drawn but are not in fact used, shall be regarded as wasted quotas. Enterprises wasting more than a specific proportion of quotas won by tender shall be stripped of their qualification to tender for the quota of that export commodity for one to three years, in accordance with the seriousness of the waste. Concrete details shall be determined by the Tender Committee in accordance with the actual circumstances of different commodities.

Article 40　If acts by enterprises in violation of the above Articles of this Part constitute deliberate sabotage of invitation to tender and are serious, the Tender Committee may revoke in perpetuity their qualification to submit tenders for a single commodity or for all tender commodities, and shall hand the case over to be dealt with by judicial authorities.

Article 41　If winning enterprises are unable to pay the winning tender sum (including the winning tender guarantee sum) in accordance with the regulations because of force majeure, they should within a reasonable time period submit certificates issued by the relevant organizations. They can be exempt from all or part of the responsibility with the approval of the Tender Committee.

Article 42　If, for reasons such as the international market, the utilization rate of the quota of a particular commodity is generally low, the winning enterprises can be exempt from all or part of the responsibility with the approval of the Tender Committee.

PART NINE　SUPPLEMENTARY PROVISIONS

Article 43　MOFTEC shall annually check and compile a budget for expenditure incurred by MOFTEC, the Tender Committee, Tender Offices and Local Departments in charge of Foreign Trade because of work on invitation to tender for export commodity quotas, in accordance with the principle of separate administration of revenue and expenditure, to be allocated by the Ministry of Finance from the central foreign trade development fund with settlement taking place at the end of the year.

Article 44　No work unit, organization or individual may publish regulations, notices, notifications, etc. related to invitation to tender for quotas of export commodities without the approval of MOFTEC or the Tender Committee.

Article 45　MOFTEC is responsible for interpreting these Procedures.

Article 46　These Procedures shall be implemented as of 1 January 2002. The original Invitation to Tender for Export Quotas Procedures and Invitation to Tender for Export Quotas Procedures Implementing Rules (ref. [1998] Wai Jing Mao Guan Fa No. 974) shall be simultaneously repealed.