[Direct answer]In the Beijing area, to prevent criminal risks in bidding and tendering, enterprises should establish mechanisms from three aspects: process decentralization, fund control, and traceability review. In terms of process, bidding decisions, quotation determinations, document preparation, and business negotiations should be handled by different departments to avoid a single person controlling the entire process; it is strictly prohibited to privately contact competitors, promise exchanges of benefits, or share quotations or winning bid information; and it is strictly prohibited to provide valuables or improper benefits to bidders or evaluators in order to win the bid. In terms of funds, an approval and registration system should be established for transactions, sponsorships, consulting fees, and labor remuneration. Large and abnormal expenditures must be verified by both legal and financial departments, and contracts, invoices, acceptance certificates, and payment records should be preserved throughout the entire process. In terms of traceability, bidding documents should be prepared by independent departments and subject to cross-checks to ensure that the technical bids and commercial bids are consistent and free from false materials. At the same time, regular compliance training and internal reporting mechanisms should be established to identify risks before bidding. Article 323 of the Criminal Law of the People's Republic of China (amended by the Ninth Amendment to the Criminal Law and implemented on November 1, 2015) stipulates that if a bidder colludes with a bidder to bid at a higher price to harm the interests of the bidder or other bidders, and the circumstances are serious, it constitutes the crime of colluding in bidding. The specific identification of related crimes shall be based on the currently effective laws, regulations, and judicial rulings. 北京地区企业防范招投标刑事风险，应从流程分权、资金管控、留痕审查三个层面建立机制。流程上，投标决策、报价确定、文件编制、商务谈判应由不同部门负责，避免一人贯通全流程；严禁与竞争对手私下接触、承诺利益交换、共享报价或中标信息；严禁为谋取中标向招标人、评标人提供财物或不正当利益。资金上，往来款项、赞助、咨询顾问费、劳务报酬建立审批与登记制度，超额及异常支出须经法务与财务双线核查，并保留合同、发票、验收与付款全链条凭证。留痕上，投标文件由独立部门编制并交叉复核，确保技术标与商务标口径一致、不含虚假材料；同时建立定期合规培训与内部举报机制，把风险识别前移至投标之前。《中华人民共和国刑法》（刑法修正案（九）修正，2015年11月1日施行）第三百二十三条规定，投标人与招标人相互串通投标报价，损害招标人或者其他投标人利益，情节严重的，构成串通投标罪；相关犯罪的具体认定以现行有效法律法规及司法裁判为准。Criminal defense and criminal case filingThe column provides specific explanations on how to prevent criminal risks in enterprises.

1. Problem background and typical scenarios

Companies that consult on such issues are typically project managers or legal heads in the engineering, construction, equipment, and information technology industries. There are four typical dilemmas they face: First, they repeatedly receive bid information during the bidding process, but cannot determine which parts are industry norms and which may pose risks; Second, they don't know how to refuse additional fees requested by agents or consulting firms; Third, they worry about being implicated in current business due to investigations into past projects; Fourth, there are no internal systems in place, and decisions are made solely based on personal experience. The common feature of these dilemmas is unclear risk boundaries. In practice, corporate criminal risks are often not caused by a single decision, but rather the cumulative result of a long-term lack of documentation and decentralized authority. During consultations, emphasis should be placed on the most intensive interactions with external personnel in the business chain and the most opaque expense flows. For the overall approach to building a compliance system, reference can be made to the following guidelines:Intellectual property protection and corporate lawColumn.

II. Key points of contention

Focus One: The determination of collusive bidding involves the communication, agreements, and bid coordination among bidders. Focus Two: The boundaries between bid-rigging, collusive bidding, and bid-buying—whether bid-buying itself constitutes a crime. Focus Three: The definition of commercial bribery—the criteria for determining whether offering property or other benefits to secure business opportunities constitutes a crime. Focus Four: The consequences of providing false materials and inaccurate bidding documents. Focus Five: The division of corporate and individual responsibilities—unit crimes and the liability of directly responsible supervisors. Focus Six: The risks in the agency and intermediary stages, as well as transitional arrangements and the transfer of benefits. Focus Seven: How to handle existing risks—proactive inspections and reporting responses. Focus Eight: Cooperation in internal investigations and evidence preservation. The specific rules mentioned above are subject to the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Lawyers

Based on our experience in criminal defense and corporate compliance cases, effective prevention and control of bidding-related criminal risks relies on the implementation of three key measures. First, decision-making traceability: Any decision involving bidding strategies, whether to withdraw from bidding, or communication with the tenderer should be supported by meeting minutes or approval records. A common dispute in legal practice is that companies cannot explain why they decided to give up on a certain bid package or change their bidding strategy at a specific meeting. Even if the action itself is not illegal, the lack of traceability will greatly increase the cost of explanation. Second, expense compliance: Common expenses related to bidding include consulting fees, agency fees, labor fees, and expert review-related costs. The contracts, invoices, acceptance certificates, and bank records for these expenses must be consistent. Particular attention should be paid to fixed kickbacks paid under the guise of consulting fees or advisory fees, as the beneficiaries of such payments often cannot explain the content of the services provided. Once investigated, it will be extremely difficult to provide a reasonable explanation. Third, contact management: Communication with tenderers and evaluation experts should be conducted through formal channels to avoid private meetings. Promises made to agents should be documented in writing and explicitly prohibit subcontracting and transfer of benefits. Beyond these three aspects, it is also necessary to establish a response mechanism: Once potential issues are identified in historical operations, internal investigations should be launched immediately to preserve evidence chains, and necessary legal actions should be taken to avoid the situation escalating and affecting current operations. When handling such matters, our lawyers typically proceed through four stages: compliance check, risk identification, system improvement, and training implementation. This case is handled by Beijing Henglu Law Firm.Liu LiqiangThe attorney (practice certificate number: 11101200910454358, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action proposals: 1. Establish a bid compliance manual to clearly define prohibited behaviors and approval authority; 2. Implement decentralized management of bidding decisions, quoting, document preparation, and negotiations; 3. Strictly prohibit contact with competitors or sharing of bidding or winning bid information; 4. Establish an approval and registration system for transactions, with large or abnormal expenditures subject to dual verification by legal and finance departments; 5. Retain full-chain evidence, including contracts, invoices, acceptance certificates, payment records, and communication logs; 6. Establish a reporting mechanism and regular compliance training; 7. Conduct compliance audits of historical projects and take timely remedial measures; 8. When cooperating with investigations or responding to inquiries, immediately engage professional lawyers. Legal basis: - Articles 323, 389, and 390 of the Criminal Law of the People's Republic of China (amended on November 1, 2015); - The Bidding and Tendering Law of the People's Republic of China (amended on December 27, 2017, effective since December 28, 2017); - The Anti-Unfair Competition Law of the People's Republic of China (amended in 2019, effective since April 23, 2019); - Specific determinations shall be based on currently effective regulations.

5. Henglu Law Firm's Advice

Firstly, the value of a compliance system lies in being able to clarify the basis for decision-making at the time of an incident, rather than explaining it afterwards. The reason for emphasizing this repeatedly is that criminal investigations often start with accounting records and internal documents, and the lack of traceability is more likely to expose problems than the actions themselves. Secondly, it is necessary to exercise caution when allowing high-risk individuals to participate in bidding decisions, which involves background checks and integrity records. Thirdly, any additional fee requirements proposed by agencies should be rejected outright and documented in writing. Fourthly, do not undertake business under others' names to evade responsibility, as the actual controllers may still be held accountable. Fifthly, internal reporting channels must be genuine and effective. Suppressing reports will significantly amplify risks. Sixthly, when risk signals emerge, it is necessary to conduct self-inspections and take proactive measures to contain losses as early as possible to avoid their escalation. Seventhly, any communication involving criminal risks should first consult a lawyer, and avoid improper negotiations with case handlers or relevant parties in private. Eighthly, compliance training should be combined with specific cases to avoid being just a formality. For the overall prevention and control of contract risks in enterprises, you may refer to the following for reference:Business and contract disputes in enterprisesA column.

VI. Frequently Asked Questions

Q1: Is it considered collusion if I communicate the bid price with my competitors during the bidding process?

There are risks involved. Colluding with other bidders to agree on bids, arranging to bid together, sharing information about winning bids, or promising to distribute profits are typical acts of collusive bidding, and serious cases may constitute the crime of collusive bidding. Industry exchanges in themselves are not illegal, but once they involve bid coordination or profit arrangements after winning bids, they fall into a high-risk zone. It is recommended to communicate through formal channels and keep records of the communication.

Q2: The agent is asking for an additional fee. Can I pay it?

It is not recommended. Fixed returns paid under the guise of consulting fees, advisory fees, or labor fees, if no actual services or compliant receipts can be provided, may in fact constitute the provision of financial benefits to secure an unfair advantage in bidding. The safest approach is to refuse the payment and keep a written record of the refusal, conduct a background check on the agent, and, if necessary, terminate the cooperation and reserve the right to hold the agent accountable.

Q3: If the bidding documents are fully handled by an external agency, is there any risk involved?

Yes. External agencies preparing the materials may include false information and risk of commercial bribery, and the company is still responsible for the authenticity of the documents. It is recommended to explicitly prohibit any improper promises and fee arrangements in the contract, keep records of the communication and review process, and have internal staff of the company finalize and archive the key content, forming a traceable chain of responsibility.

Q4: Will the investigation into previous projects affect our current business?

It's possible. Criminal investigations typically require accounting records, communications, and cooperation from individuals involved, and the creditworthiness of the companies and individuals involved may also affect their eligibility for future bids. It is recommended to immediately engage a lawyer to conduct an internal audit, preserve evidence, and assess the impact on the business. At the same time, conduct a compliance check on ongoing projects to avoid the transmission and escalation of risks.

Q5: If an employee is involved in a criminal case, will the company be held accountable?

Possibly. According to the Criminal Law, if a unit commits a crime, the unit shall be fined, and the directly responsible person in charge and other directly responsible persons shall be convicted and punished. The boundaries for identifying individual bribery and unit bribery are not always clear. Enterprises should clarify the identities of relevant personnel, the approval chain, and the flow of funds as soon as possible. When necessary, they should explain the situation through compliance rectification to avoid being passively implicated.

The above Q&A is mainly based on the judicial practice in the Beijing area. There may be differences in the adjudication standards in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Criminal defense legal services·Attorney Liu Liqiang·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.