Zhongcheng Qingtai. Real estate perspective: the transformation of general contracting.

In order to promote the healthy development of general contracting for construction projects, on November 25, 2020, the Ministry of Housing and Urban-Rural Development and the General Administration of Market Supervision jointly issued the "General Contracting Contract for Construction Projects (Model Text)" (GF-2020-0216), which once again set off a heated discussion on general contracting for construction projects. The concept and advantages of general contracting of 1. projects On December 23, 2019, the Ministry of Housing and Urban-Rural Development and the National Development and Reform Commission jointly issued the "Administrative Measures for General Contracting of Housing Construction Municipal Projects" (Jianshi Gui [2019] No. 12). Article 3 stipulates: "The general contracting of projects referred to in these Measures refers to the implementation of general contracting by the contractor in the stages of project design, procurement, construction or design and construction in accordance with the contract signed with the construction unit, and the quality of the project, safety, duration and cost of the overall responsibility for the organization and implementation of the project construction." This definition is the latest definition of the concept of general contracting at the national standard level, which is not only applicable to the field of housing construction and municipal infrastructure, but also has important reference significance for construction projects in other fields. Compared with the traditional contracting method, the general contractor of the project is responsible for the implementation of the entire project and no longer builds the project as a separate subcontractor, which is conducive to the overall planning and resource coordination of the entire project. It can maximize the advantages of all parties in project management and realize the objectives of project management. 2. the development of China's general project contracting in China has experienced a long period of development. It is roughly divided into the following stages: In 1982, the former Ministry of Chemical Industry issued the "Opinions on Reforming the Current Capital Construction Management System and Trial Implementation of the General Project Contracting System with Design as the Main Body", which is considered to be the beginning of my country's implementation of the general project contracting model. In 1984, the "Interim Provisions of the State Council on Several Issues Concerning the Reform of the Construction Industry and Capital Construction Management System" (Guo Fa [1984] No. 123) proposed to implement the organization and implementation of general contracting construction projects nationwide. In 1992, the former Ministry of Construction promulgated and implemented the Interim Provisions on the qualification management of general contracting enterprises (for Trial Implementation) to manage the qualification of general contracting enterprises. In 1997, the "Construction Law" was promulgated and referred to "general contracting of projects". In 2011, the Ministry of Housing and Urban-Rural Development and the State Administration for Industry and Commerce jointly issued the "Model Text of Construction Project General Contracting Contract (Trial)" (Jianshi [2011] No. 139) to clarify the rights and obligations of both parties to the contract, further regulate market behavior, and ensure The quality and safety of general contracting projects. In 2014, the Ministry of Housing and Urban-Rural Development issued the "Several Opinions on Promoting the Development and Reform of the Construction Industry" (Jianshi [2014] No. 92), requesting to increase the implementation of general contracting. Advocate the general contracting model for engineering construction projects, and encourage powerful engineering design and construction companies to carry out general contracting business. In 2016, the Ministry of Housing and Urban-Rural Development issued the "Several Opinions on Further Promoting the Development of General Contracting" (Jianshi [2016] No. 93) to carry out the pilot project general contracting. Document No. 93 mainly clarifies issues such as consortium bidding, qualification access, and the responsibilities of the general contractor of the project. In 2017, the General Office of the State Council issued the "Opinions on Promoting the Sustainable and Healthy Development of the Construction Industry" (Jianshi [2017] No. 19), requesting that the implementation of general contracting be accelerated. Document No. 19 mainly points out that our country's construction industry development organization mode is backward, and proposes to solve the above problems by implementing general contracting and cultivating the whole process consultation. In April of the same year, the Ministry of Housing and Construction issued the 13th five-year Plan for the Development of the Construction Industry, proposing that during the 13th five-year Plan period, it is necessary to develop the general contracting management capacity of the industry and cultivate a number of general contracting enterprises with advanced management technology and international competitiveness. In December of the same year, the Ministry of Housing and Construction issued a letter on soliciting opinions on the measures for the Administration of General Contracting of Housing Construction and Municipal Infrastructure projects (draft for soliciting opinions) (Construction and Establishment letter [2017] No. 65), further proposing specific solutions for the development of general contracting projects. In 2018, the Ministry of housing and urban rural development issued the national standard "management specification for general contracting of construction projects", which made specific provisions on the contract management, contract and settlement, responsibilities and obligations of participating units, etc., and then successively issued policies and regulations on general contracting construction license and project cost. In 2019, the Ministry of Housing and Urban-Rural Development and the National Development and Reform Commission jointly issued the "Administrative Measures for General Contracting of Housing Construction and Municipal Infrastructure Projects", which clarified the development trend from "construction general contracting" to "general contracting" from the policy level, taking into account the Ministry of Housing and Urban-Rural Development. With the special status of the National Development and Reform Commission in the field of engineering construction, the "Measures" has become the "direction standard" for the development of general contracting development of various industries ". In 2020, the Ministry of housing and urban rural development and the State Administration of market supervision jointly issued the "construction project general contracting contract (model text)" (GF-2020-0216) according to the current national implementation idea of general contracting projects, combined with the international practice reflected in FIDIC contract conditions, and considered the current domestic general contracting project practice. Recently, the Ministry of housing and urban rural development issued the notice on the reform plan of qualification management system of construction engineering enterprises, which will play a guiding role in the in-depth development of general contracting. 3. the new version of the project general contract model text key changes 1, distinguish the tax rate, refine the contract price composition. Under the background of the comprehensive business tax reform and increase in the construction industry, the new version of the contract distinguishes design fees, equipment purchase fees and construction and installation engineering fees respectively in combination with the actual needs of the general contracting project covering multiple taxable behaviors and applying different tax rates, and guides market entities to distinguish and list different cost compositions, applicable tax rates, taxes and other contents, so as to avoid the risk of high applicable tax rates due to the application of business tax reform and increase tax laws and increase tax laws and policies, at the same time, it also avoids disputes over the contract price between the contracting parties due to differences in the calculation of taxes and fees and the adjustment of tax policies. 2. Add documents such as "Employer's Requirements", "Project List" and "Price List" as an integral part of the EPC contract to reduce disputes over pricing, changes and claims during the performance of the contract. The root cause of the risks faced by the current general contracting projects often lies in the fact that it is difficult for the contractor to put forward reasonable, accurate and scientific bidding requirements due to the limitation of the results of the previous consulting services, which further makes the contractor's quotation and implementation plan lack pertinence. Once the project enters the performance stage, with the continuous clarification of the employer's requirements and the advancement of the design depth, it is easy to cause disputes over the project price. The new version of the contract clearly puts forward the "Employer's Requirements" as an annex to the contract, and lists its interpretation order as the same as the special conditions of the contract. At the same time, in the definition of [Article 1 General Agreement], it is clear that the employer shall provide the project details such as various expenses and corresponding quantities of the project contents specified in the Project List, the contractor shall, in accordance with the "Project List" provided by the contractor, produce the "Price List" and "Contractor's Proposal" in response to the requirements of the contractor, and through this series of documents, improve the accuracy of the contract content of the EPC project and reduce disputes during the performance of the project. 3. Guide the two parties to reasonably share the risks, make it clear that the Employer shall bear the risks of errors in the Employer's Requirements or the basic data provided, and the Employer shall bear the increased costs or postpone the construction period, and the Contractor shall have the right to obtain reasonable profits; It is clear that the Employer shall bear the increased costs and (or) delayed construction period caused by the Contractor taking reasonable measures to deal with unforeseen difficulties. According to the regulations on government investment and the administrative measures for general contracting of housing construction and municipal infrastructure projects, the new version of the contract [1.12 the Employer's Requirements and errors in basic data] stipulates that the contractor has the obligation to carefully read and review the Employer's Requirements and the basic data provided by the Employer and notify the Employer to make correction, if the Employer makes corresponding modifications, or if errors in the Employer's Requirements or the basic data provided by the Employer cause the Contractor to increase costs and (or) delay the construction period, the Employer shall bear the increased costs and (or) delay the construction period, and pay reasonable profits to the Contractor. Compared with the 2011 version of the contract, which requires the contractor to review the basic information provided by the contractor within 15 days, otherwise the contractor will bear the risk of shortage, omission and error of basic information and on-site obstacle information, the new version of the contract is more friendly to the contractor. 4. In the progress payment, labor costs are required to be applied separately and paid on a monthly basis to provide guarantee for migrant workers to receive wages in full and on time. The Regulations on Guaranteeing Wage Payment for Migrant Workers, which came into effect on May 1, 2020, stipulate that "migrant workers have the right to receive wages on time and in full" and "the allocation period for labor expenses shall not exceed one month". In this regard, the new version of the contract [14.3.1 Application for Project Progress Payment] improves the payment period, application and approval process for labor expenses between the two parties from the agreed perspective, transforming the provisions of administrative regulations into the agreement of both parties, the parties can further refine the agreement in the special terms and clarify the corresponding liability for breach of contract, which will play a positive and effective role in solving the problem of wage arrears of migrant workers that have plagued the construction industry for many years. At the same time, the contractor should also combine this agreement in the new version of the contract to regulate the subcontract accordingly, effectively solve the problem of wage arrears of migrant workers, and actively protect the interests of migrant workers. 5. The loss of work stoppage due to force majeure shall be reasonably shared by both parties. Under the continuous influence of the current new crown pneumonia epidemic, the force majeure clause has attracted more and more attention from market players. Looking back on the claims caused by the force majeure of the new crown epidemic in early 2020, the most controversial one is how to share the contractor's shutdown losses. Although the 2011 version of the contract [17.2 the consequences of force majeure] is agreed to be borne by the contractor, there are major disputes in actual performance, especially the part of labor wages, if the contractor is responsible for it, it is different from the provisions of local policy documents that require the construction unit to give corresponding compensation, and it is not conducive to social stability. The Measures for the Administration of General Contracting of Housing Construction and Municipal Infrastructure Projects emphasize that the contracting parties should "reasonably share the risk", and Article 9.10.1 of the GB50500-2013 on the Pricing Standard of Construction Project List stipulates that "the parties to the contract shall bear the losses themselves". At the same time, combined with the principle of fairness and the actual performance of reasonable distribution. In response, the new version of the contract [to 17.4 the consequences of force majeure] stipulates that "the contractor shall reasonably share the expenses and losses resulting from the contractor's shutdown, and the necessary wages of workers on site that must be paid during the shutdown shall be borne by the contractor", so as to better protect the rights of migrant workers in the event of force majeure and guide both parties to jointly resist the risk of force majeure.