Recently, against the backdrop of ongoing special rectification efforts targeting bid-rigging in the government procurement sector, Senior Partner Zhang Qiming and Partner Xu Ming of King&Capital law Firm achieved a milestone in a bid-rigging case they were handling. The prosecution decided not to approve the arrest of the defendant, Yin, who was subsequently released.
Yin is the general manager of a certain company. In the project in question, relevant personnel from the company participated in “dummy bidding.” First, Yin’s subordinates discussed and coordinated with personnel from a partner company, and subsequently, Yin’s company cooperated to complete procedures such as affixing seals. The investigative authorities placed Yin and personnel from his company under criminal detention on suspicion of bid-rigging.
Although the act of “bid-matching” appears to involve participation in the bidding process, there is room for defense in practice regarding whether it can be classified as a crime, whether it constitutes bid-rigging subject to criminal liability under the Criminal Law, and the extent of participation and the significance of one’s role. Upon accepting the retainer, the defense attorney immediately met with the client to thoroughly verify key facts—including the sequence of events, details of the collaboration, and the decision-making process—and clarified Mr. Yin’s level of involvement and degree of subjective awareness regarding the conduct in question. Based on the case details, the defense attorney conducted an extensive search nationwide for final judgments and decisions of non-prosecution in similar “shadow bidding” cases, analyzing the judicial authorities’ standards for holding individuals accountable for passive participation in bidding activities. At the same time, the defense attorney gathered information on the client’s family circumstances and comprehensively assessed his risk to society. Based on this, the attorney drafted a legal opinion advocating against the approval of arrest. The opinion systematically presented arguments from multiple dimensions—including objective conduct, subjective awareness, the role of the conduct, risk to society, and the handling of similar cases—and, through thorough communication with the prosecuting attorney, successfully persuaded the procuratorial organ to issue a decision not to approve the arrest.
Currently, the government procurement sector is in a critical phase of strict rectification. In June 2024, the General Office of the State Council issued the Three-Year Action Plan for the Government Procurement Sector, clearly stipulating that four categories of illegal and non-compliant behaviors would be continuously addressed between 2024 and 2026, with strict investigations into bid-rigging. As 2026 marks the final year of the three-year action plan, regulatory intensity and the depth of investigations continue to escalate. Recently, the Ministry of Finance, the Ministry of Public Security, and the State Administration for Market Regulation jointly issued the “Notice on Carrying Out the 2026 Special Rectification Campaign Targeting ‘Four Categories’ of Illegal and Non-Compliant Conduct in the Government Procurement Sector.” This notice identifies discriminatory clauses by procuring entities, arbitrary fees charged by procurement agencies, false materials submitted by suppliers, and bid-rigging and collusion among suppliers as key targets for rectification. The special rectification campaign runs from mid-June through the end of December and covers government procurement activities at the central, provincial, municipal, and county levels. Under this high-pressure regulatory environment, risk prevention and crisis management are of paramount importance.
Cases involving bid-rigging exhibit diverse patterns of conduct, including bid-rigging, token bidding, bidding using borrowed qualifications, “collusive bidding” where terms are agreed upon before formalities are completed, and bribery during the bidding process. The contexts in which such collusion occurs span tenders, auctions, competitive bidding, competitive negotiations, competitive consultations, and price inquiries, with the degree of involvement by parties varying significantly from case to case. Whether such conduct constitutes a criminal offense remains highly controversial both in academic theory and in practice. This requires defense attorneys to focus not only on the factual basis but also to examine the case from higher-level dimensions, such as the literal and implied scope of the bidding and tendering concepts, the status and role of principal and accessory offenders, and the infringement of substantive legal interests. Moving forward, the attorneys will continue their efforts to secure a favorable outcome for Mr. Yin in this case.
