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.

This article is reproduced in WeChat public number "Construction Engineering Information Publishing Platform" Link to the original text: About the scope of the project that 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. The National Development and Reform Commission's Reply Message Selected Summary Q1: Can construction projects below 4 million yuan be directly contracted out? Decree No. 16 issued by the National Development and Reform Commission stipulates that construction projects above 4 million yuan must be subject to public bidding, but there are no regulations on how to contract projects below 4 million yuan. Q: Can the tenderee directly contract out, or use competitive negotiation and competitive negotiation according to the relevant laws and regulations on financial procurement? 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 Q2: About the scope definition of projects that must be tendered? According to Decree No. 16 of the National Development and Reform Commission of the People's Republic of China, "Regulations on Projects Subject to Bidding", Article 2 Projects that (I) use budget funds of more than 2 million yuan and the funds account for more than 10% of the investment amount are subject to bidding. Article 5 If the estimated price of a single (I) construction contract is above 4 million yuan, bidding must be conducted. May I ask if the total investment of a reconstruction and expansion project is 3.6 million yuan, the source of funds is all budget funds, there is only one construction contract, and the construction contract amount is 3.1 million yuan. If according to the (I) clause of Article 2, the project belongs to the scope of bidding required, and according to the (I) of Article 5, the construction contract amount is not above the limit of bidding required, then is the construction of the project within the scope of bidding required? 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 Q3: Does the 4 million yuan construction project have to be subject to public bidding? "Provisions on Engineering Projects Subject to Bidding" Decree No. 16 of 2018 Article 5 Projects within the scope of Articles 2 to 4 of these Provisions shall be subject to bidding if their survey, design, construction, supervision and procurement of important equipment and materials related to engineering construction meet one of the following standards: (1) The estimated price of a single construction contract is above 4 million yuan May I ask: Among the conditions that must be invited for bidding, does the estimated price of the construction unit price contract include 4 million yuan? Or must it be greater than 4 million yuan? 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 Q4: Project general contracting bidding consultation 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? 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 Full text of the reply Reply to the situation where "tendering may not be carried out" 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. Reply to Consultation on Questions Related to Public Bidding 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. Reply on Whether Government Investment Projects Can Trade Through the Third Party Bidding Electronic Trading Platform 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 tenderers. Reply on which department should be filed with for self-bidding filing projects 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. Reply on whether a subsidiary of a state-owned enterprise can participate in the bidding organized by the state-owned enterprise. 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, and the circumstances specified in 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 tender. 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. Reply on whether the construction drawing review, cost consultation, third-party monitoring, monitoring and other services in the construction project belong to the scope of the project that must be tendered according to law 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. Reply on Which Party Should Pay the Service Fee of Bidding Agency 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. Reply on whether bidding is required for 10 million renovation works unrelated to new construction, reconstruction and expansion of buildings and structures 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. Reply to the Scope of Application of the Provisions on Engineering Projects Subject to Bidding Does the "procurement of important equipment and materials related to engineering construction" mentioned in Article 5 of the Provisions on Engineering Projects Subject to Bidding include the procurement of non-Party A- supplied materials by state-owned construction enterprises? State-owned construction</必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定>

2021-09-16

Viewpoint... The general defense right, exclusive defense right and refusal to perform the provisions and application of the guarantor-the civil code guarantee problem is confusing (II).

The Civil Code gives the guarantor the general right of defense, the exclusive right of defense and the right to refuse to perform. The realization of each right has specific conditions. If it is properly exercised, the guarantor's unique rights and interests can be protected. If it is improperly exercised, the guarantor may lose the right of recovery. The creditor may fail to pay off the debt due to the exercise of the aforementioned rights. Therefore, it is necessary to clarify different situations to avoid confusion and legal risks. General right of defense of guarantor Article 20 of the former Security Law stipulates that "the right of defense refers to the right of the debtor to exercise the right of claim against the creditor in accordance with the legal cause when the creditor exercises the claim." This right of defense, whether the debtor exercises it or not, has the right to a separate defense, which is the legal origin of the guarantor's general right of defense. However, it is criticized for emphasizing that the exercise of the right of defense is based on "legal causes", which excludes the agreement between the creditor and the debtor on the existence of autonomy, but whether the main contract or from the contract, the parties can agree on a large number of corresponding rights and obligations, and even special terms. In view of this, article 701 of the Civil Code removes the restriction of "statutory causes. In case one, the debtor of the main contract exercises the right of defense against the creditor, the effect of which is based on the guarantor, even if the guarantor does not defend, the legal consequences of the debtor's claim also apply to the guarantor based on the subordinate nature of the guarantee contract. The guarantor shall be liable for the guarantee to the extent of the debt determined on the basis of the debtor's exercise of the right of defense. Case 2, the debtor of the main contract does not exercise (express or implied waiver) the right of defense, but the guarantee contract has relative independence, which is a guarantee contract concluded with the creditor based on the unilateral will of the debtor or the guarantor, and its relative independence enables the guarantor to still exercise the right of defense belonging to the debtor alone to protect the interests of the guarantor and prevent the debtor from colluding with the creditor to damage the interests of the guarantor; In case three, the debtor of the main contract exercises the right of defense, and the guarantor voluntarily waives the defense. For example, if the debtor sets off part of the debt or the claim exceeds the statute of limitations, but the guarantor still performs the guarantee liability before the set-off or performs the guarantee liability for the debt beyond the statute of limitations, the guarantor's right to recover from the debtor is lost. The creditor may claim the return of the excess of the payment, and the natural debt beyond the statute of limitations shall bear the legal consequences. PROPRIETARY DEFENCES OF GUARANTOR In view of the subordination and relative independence of the guarantee contract, the law gives the guarantor a separate and exclusive right of defense in order to balance the benefits of each method. Scenario 1, from the point of view of the principal contractual obligation, the creditor and the debtor change the principal contractual obligation without the written consent of the guarantor. The guarantor's liability belongs to "more not to bear, less not to make up", that is, to reduce the debt, the guarantor in accordance with the change of the debt to assume the responsibility of the guarantee. It should be reminded that the debt itself has not been changed but only the period of performance, and the guarantor is still liable for the guarantee without the written consent of the guarantor. However, it should be noted that the guarantor's guarantee period remains unchanged, and the guarantor still calculates the guarantee period according to the time agreed in the original contract or stipulated by law. This means that the creditor cannot take it for granted that after the change in the period of performance of the principal obligation, the starting point of the guarantor's guarantee period changes accordingly. This delay in claiming rights to the guarantor, there is a legal risk of the guarantor "de-insured. Case 2, from the creditor's point of view, the creditor transfers all or part of the claim without notifying the guarantor, and the transfer has no legal effect on the guarantor. In particular, when the contract prohibits the transfer of claims, the guarantor is no longer liable to the assignee without the written consent of the guarantor. The original Judicial Interpretation of the Security Law provided for the transfer of the principal claim to a third party, guaranteeing the simultaneous transfer of the claim. This provision results in the guarantor being in a completely passive subordinate state, which is not conducive to rationalizing the security relationship, so the Civil Code adopts the "notice of assignment of claims" rule, otherwise the guarantor has the right to refuse the assignee's claim for liability for the guarantee. However, in the case of a unilateral transfer of a non-transferable claim, the guarantor is exempted from the liability of guarantee, which is a very high legal risk for the creditor and the transferee if the creditor cannot accurately grasp it. But the question is whether the guarantor's guarantee liability will be restored if the assignee returns the prohibited transfer claim to the creditor? The Civil Code does not provide for it and needs further exploration in judicial practice. In case 3, from the perspective of the principal debtor, if the debtor transfers all or part of the debt with the consent of the creditor but without the written consent of the guarantor, the guarantor "waives the guarantee liability" for the transfer of the debt without consent ". The reason for this is that the guarantor's guarantee is based on a special relationship with the debtor, or a guarantee based on a recoverable assessment, and if a change in the debtor would lead to an increase in the associated risk, an imbalance in the guarantor's legal interests could easily lead to acts detrimental to the guarantor's interests. Scenario 4, from the point of view of debt accession, without the consent of the guarantor, a third party joins the debt relationship and becomes a new debtor, and the guarantor cannot refuse to assume the responsibility of the guarantee. The addition of the debt guarantees the realization of the creditor's rights, and whether the third party can truly perform the debt does not increase the guarantor's established guarantee liability. After the guarantor assumes the responsibility of guarantee, in addition to exercising the right of recovery from the original debtor, can the guarantor recover from the new debtor? The Civil Code does not provide for it, and it needs further interpretation in judicial practice. In terms of legal relations, the newly added debtor may be a debt by share or a joint debt, and the corresponding rights and obligations are different, requiring specific analysis of specific issues. Guarantor's right to refuse performance The Civil Code creates a new right for guarantors, the right to refuse performance. The essence of this right is the right to guarantee the performance of the obligation, that is, under certain circumstances (the debtor has the right of set-off or avoidance against the guarantor), the guarantor can resist the creditor's refusal to perform the guarantee obligation without being liable. Case 1, the guarantor's right of refusal based on the right of set-off. From a contractual point of view, the law recognizes statutory (subject matter similar maturing debt) set-off and intended (subject matter heterogeneous) set-off. The Civil Code does not exclude intended set-off here and should therefore apply as well. However, such a right is a temporary suspension of the performance of the guarantee obligation, not an exemption from the guarantee liability. If the debtor exercises the right of set-off or the right of set-off is found to be invalid by law, the guarantor's right to refuse performance is also lost. In case two, the guarantor refuses to perform on the basis of the right of avoidance. The Civil Code establishes the right of revocation to implement the principle of autonomy of the will, and when the parties to the contract (due to fraud, coercion, misunderstanding, etc.) have an act of untrue meaning, the parties are allowed to revoke the act, thus protecting the true will and interests of both parties. Similarly, the right of revocation belongs exclusively to the revocation right holder, and the guarantor cannot take the initiative to replace the right holder to exercise offside, so the Civil Code gives the guarantor the right to relief is the right of temporary refusal to perform, not the exemption from the responsibility of the guarantee. The right of set-off and the right of avoidance are the right of formation, and the exercise of such rights depends entirely on the unilateral intention of the debtor. The guarantor refuses to exercise the right of performance, which is enjoyed by the debtor and is still enjoyed at a particular stage during the exclusion period. That is, at the stage where the debtor is "saved but not used", if the debtor has exercised its rights, the guarantee liability is waived accordingly; if the debtor has removed its rights, the guarantor naturally does not have the right to refuse performance. This provision is based on the fact that the guarantor is given a relief mechanism when the scope of the secured debt is uncertain. Although the guarantor cannot directly exercise the right of set-off or revocation, the Civil Code gives the guarantor the right to perform the defense against the creditor, which is also conducive to the principal debtor and the creditor to finally determine the scope of the secured debt and avoid the litigation burden of serial litigation. In summary, the Civil Code further clarifies the guarantor's general defense right, the exclusive defense right, and creates the guarantor's right to refuse to perform. The exercise of these rights, even staggered, may change the "survival" of the entire secured debt, which is a place of dispute between the parties and cannot be ignored. Furthermore, the Civil Code still needs in-depth discussion on related issues. Welcome to further thinking, collision and communication! (Text/Cheng Law-abiding)

2021-09-15

Can branches, subsidiaries, etc. participate in the project bidding? Regarding the participation of branches and parent subsidiaries in the bidding activities, this article is clear.

This article is reproduced in the WeChat public number "Construction Engineering Information Publishing Platform", from China Planning Publishing House. Link to the original text: Practical Questions and Answers | Can branches, subsidiaries, etc. participate in project bidding? 1. Can the branch bid? Question: What is the difference between a subsidiary and a branch company? For a construction project, is the branch company allowed to bid? For general projects (such as projects that do not require qualifications), is the branch company allowed to bid? A: See the table below for the differences between branches and subsidiaries. For construction projects, the branch is not allowed to bid, because the construction project requires the bidder to have the corresponding general contracting or professional contracting qualification, the branch can not obtain the construction qualification certificate. For general projects, branch companies may be allowed to bid, but the final civil liability is borne by their head office. 2. Can the branch bid with the qualification of the head office? Q: For an electronic intelligent bidding project, one of the bidding units is a branch, because there is no qualification, the qualification of the head office is used to participate in the bidding of the project. During the evaluation, the bid evaluation committee considers that the head office has the qualification and authorization to the branch and determines that the branch bid is valid. May I ask: Can a branch bid with the qualifications of the head office? A: The bid of the branch company for this project is invalid. Qualification is an administrative license and may not be granted or accepted privately. It is illegal for the head office to authorize its own qualification to a subsidiary and promise it to use it to participate in the bidding. It should be noted that if the project branch is bidding in the name of the head office, the role of the branch in the project is the authorized representative of the bidder (head office), not the branch itself. In this case, the bid is valid. 3, the parent company to participate in the same project bidding, the parent company voluntarily give up bidding, the subsidiary's bidding should be how to deal? Q: A project is subject to public bidding. A total of 6 construction companies participated in the bidding, two of which are parent and subsidiary companies. After the project entered the bid evaluation stage, the parent company issued a written notice to voluntarily waive the bid. Should the bid evaluation committee continue to evaluate the tender documents of the subsidiary, or should it reject the tender of the subsidiary? A: The tender of the subsidiary shall be subject to invalid tender treatment. The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." According to the provisions of this article, the following different bidding units shall not participate in the bidding activities of the same bidding project: ① Different bidding units in which the person in charge of the unit is the same person; ② Different bidders with a controlling relationship; ③ Different bidding units with management relationship. The law prohibits different bidding units with the above-mentioned relationship from participating in the same project competition, which is a restrictive provision made to maintain the fairness of bidding. In the practice of bidding and tendering, there is a holding or management relationship between two units to participate in the same bidding project bidding, prone to prior communication, private collusion and other phenomena, affecting the fairness of competition, it is necessary to prohibit. In this case, there is a control and controlled relationship between the parent and subsidiary, which is prohibited by law. The third paragraph of Article 34 of the "Regulations on the Implementation of the Bidding Law" also stipulates: "If the provisions of the preceding two paragraphs are violated, the relevant bids are invalid." The invalid tender here means that the tender activity is invalid from the beginning. In other words, as long as there are prohibited circumstances stipulated in paragraphs 1 and 2 of Article 34 of the regulations, the relevant bid shall be invalid no matter when it is found. Specifically: if this situation is found in the bid evaluation process, the bid evaluation committee shall reject the bid; If this situation is found in the publicity of the winning candidate, the tenderee shall cancel its qualification to win the bid; If this situation is found after the contract is signed, the winning contract shall be invalid, and the tenderee shall cancel the contract, re-identify other winning candidates as the winning bidder according to law, or re-bid; If the contract has been performed, if it cannot be restored to the original state, the winning contract shall be invalid and the winning bidder shall compensate for the losses caused thereby. In this case, if it is found that the parent and subsidiary companies participate in the bidding of the same project at the same time, the bid evaluation committee shall reject the bidding documents of the parent and subsidiary companies. The rejection of the bid by the bid evaluation committee shall be made on its own in accordance with the law and shall not be affected by whether the parent company makes the abandonment of the bid. In addition, the legal nature of the parent company's abandonment of the tender after the closing of the tender is a withdrawal of the offer. As a tenderer, it may also not refund the tender deposit of the company in accordance with the relevant laws and the provisions of the tender documents. 4. How do you understand that "parent company, wholly-owned subsidiary and its holding company" may not bid at the same time? Q: How do you understand that "parent company, wholly-owned subsidiary and its holding company" cannot bid at the same time? Can wholly-owned subsidiary and holding company bid at the same time? In other words, can brother companies bid at the same time in the bidding of goods? Answer: The wholly-owned subsidiary of the same company and its holding company, that is, the brother company, if its legal representative is not the same person, can participate in the bidding of the same bid section or the bidding of the same project without division. The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." Therefore, a parent company cannot bid for the same project at the same time; however, between a wholly-owned subsidiary and a holding company of the same parent company, I .e. between brother companies, if their legal representatives are not the same person, they may participate in the bidding for the same bid section or the bidding for the same project without division of the bid section. 5. According to the Measures for Tendering and Bidding for Construction Projects, what are the subsidiaries that are not eligible to participate in bidding? Q: Article 35 of the Measures for Bidding and Bidding for Construction Projects (Decree No. 30 of the National Development and Reform Commission and other seven departments) stipulates that bidders are legal persons or other organizations that respond to bidding and participate in bidding competition. Any subsidiary body (unit) of the tenderee that does not have independent legal personality, or any legal person and any subsidiary body (unit) that provides design and consulting services for the preliminary preparation or supervision of the bidding project, are not eligible to participate in the bidding of the bidding project. What are the subsidiary bodies? Answer: The specific scope of "subsidiaries (units)" referred to in Article 35 of the "Measures for Bidding and Bidding for Construction Projects" includes wholly-owned subsidiaries of the parent company, holding subsidiaries, and branches of the company that do not have legal personality., Offices, representative offices and other related institutions. 6. In the construction project, can the parent company directly contract out the bidding project to a subsidiary company with construction qualification? Q: The tenderer of a construction project is Company A, and Company B is a wholly-owned subsidiary of Company A. Company A does not have the qualifications required for the bidding project, and Company B has the qualifications and capabilities required for the construction project. Can Company A directly contract out the bidding project to Company B? If not, can Company B participate in the bidding of Company A's bidding project? Answer: Company A cannot directly contract the bidding project to Company B. Because Article 9 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates that if the purchaser can build, produce or provide on his own in accordance with the law, he may not invite tenders. Company A does not have the qualifications required for the bidding project and cannot construct by itself. It must determine the construction contractor through bidding. Although Company B is a wholly-owned subsidiary of Company A, Company A and Company B are both independent legal entities with respective rights and obligations. Therefore, although Company B has the qualifications and capabilities required for the construction project, Company A cannot directly contract out the bidding project to Company B. On the premise of not affecting the fairness of bidding, Company B can participate in the bidding project of Company A. Because according to Article 34 of the Regulations on the Implementation of the Bidding and Bidding Law, 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 that have an interest in the tenderer from participating in the bidding, and the prohibition of bidding requires that the two conditions of "the existence of an interest" and "may affect the fairness of the bidding" be met at the same time. Even if there is a certain "interest" 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" does not affect its fairness and can participate in the bidding.

2021-09-13

Review of Construction and Environmental Capital Law (No.21) | How to Solve the "Two Skin" Problem of the Consortium under the New General Package Policy?

This article is reprinted on WeChat public number "China Survey and Design" and published in the August 2021 issue of "China Survey and Design" magazine. The original author is Liu Qiyou of Shenzhen Construction and Public Works Department, and Zeng Yuhua He Ping of China Architecture Southwest Design and Research Institute Co., Ltd. Link to the original text: How to solve the "two skins" problem of the consortium under the new general contracting policy? The joint project department solves the "two skins" problem of the general contracting consortium. In December 2019, the Ministry of Housing and Urban-Rural Development and the National Development and Reform Commission jointly issued the ''Administrative Measures for the General Contracting of Housing Construction and Municipal Infrastructure Projects' (hereinafter referred to as the ''Administrative Measures''), which clearly stated that the general contracting unit should have both the scale of the project. Adapted engineering design qualifications and construction qualifications, or a consortium formed by design units and construction units with corresponding qualifications. The "Administrative Measures" require that my country's general contracting projects must adopt the "dual-qualification" independent contracting or "dual-qualification" consortium model. Subject to the trading and management habits that have been formed by the separation of design and construction and the fact that the relevant laws of our country cannot avoid the provisions of the consortium, the consortium model is not a short-term model. However, due to the inconsistency of corporate culture, management system, salary system and project objectives among different enterprises, the phenomenon of "two skins" is common in the general contracting consortium, which is bound to have a certain impact on the development of the consortium model and even the general contracting model. This paper intends to draw lessons from the formation mode of PPP project SPV company and real estate project company, and puts forward a concept of joint project department (JPD) with unified organizational structure, unified management system and unified salary system in Project general contracting Department, in order to provide an innovative solution for the development of general contracting mode in China. The market status and practical significance of the general contracting consortium model. analysis of current market situation In the 1950 s, China began to introduce the Soviet construction model. Due to the institutional reasons at that time, China formed a construction model with the separation of design and construction, which is still in use today. The relevant laws of our country stipulate that the design enterprise is responsible for the design drawings, the construction enterprise is responsible for the construction according to the drawings, and the owner corresponds to two subjects respectively. Article 35 of the Measures for Construction Bidding and Bidding of Engineering Construction Projects stipulates that when bidding for construction projects, any subsidiary body (unit) of the tenderee that does not have independent legal personality, or any legal person and any subsidiary body (unit) that provides design and consulting services for the preliminary preparation or supervision of the bidding project, are not eligible to participate in the bidding of the bidding project. In accordance with the provisions of the above-mentioned laws and regulations, China's special construction enterprises or comprehensive Class A, industry Class A design enterprises, even if they have the corresponding design qualifications or construction qualifications, but in the actual implementation of the project by legal restrictions, can not participate in the design and construction of the same project independent bidding. The design enterprise is responsible for the design, the construction enterprise is responsible for the construction of the pattern, has solidified and formed the trading habits and management habits. At present, domestic EPC projects are in a stage of vigorous development, but from the perspective of the entire construction market, EPC projects still account for a low proportion of construction projects in the housing construction and municipal fields, mainly concentrated in government investment projects. In the current market environment, both design enterprises and construction enterprises, there are a large number of or even most of the business for non-engineering general contracting projects, few design enterprises or construction enterprises in order to develop the project general contracting business to transform the entire enterprise into an engineering company. At this stage, the consortium model of EPC is still the regular model in the EPC market. The practical significance of the existence of the consortium model. Combined with the actual situation in China, the operation and management mode of separation of design and construction will continue the traditional mode for a long time. The development trend of the general contracting market in the future should be the coexistence of "double qualification" independent contracting mode and "double qualification" consortium mode. The consortium model is an objective model, which has important practical significance for the exploration and practice of this model, mainly including the following aspects. First, for some design enterprises and construction enterprises that are willing to transform into engineering companies, the consortium mode is the transitional choice in the process of transformation. Adopting the consortium mode to undertake projects is conducive to enterprises to gradually complete the adjustment of organizational structure and management system, as well as technology accumulation and talent accumulation on the basis of controllable risks and through mutual learning and project practice. Second, even if some companies already have independent design and construction capabilities, for the sake of business diversification and efficiency, the use of the consortium model for project undertaking is a possible choice for their business development. Third, the consortium model can realize the technical integration of design and construction in the fastest way, give full play to the respective advantages of different enterprises, and form a strong alliance. This is also the vitality and value of the model itself. Analysis of the problems and causes of the general contracting consortium model. At present, the general contracting projects are mostly undertaken in the form of consortia. The design enterprises implement the project design and the construction enterprises implement the project construction, which is not much different from the traditional management mode. The integration of design technology and construction technology required for general contracting projects is not obvious, and the phenomenon of "two skins" is still obvious. The root of the phenomenon of "two skins" is that the business undertaking mode of China's construction industry has not got rid of the influence of the "Soviet model" (design and construction are separated from each other). Both design enterprises and construction enterprises have formed inertia in a long-term and single business state. There are significant differences between the two sides in corporate culture, management system and salary distribution. Under such circumstances, it is difficult for the consortium to form a unified operating system. Investigate its reason, mainly includes the following several aspects. Cultural Differences of Consortium Enterprises In the past few decades, there have been significant differences in the social awareness of design companies and construction companies under the traditional model, and the social awareness of the industry by employees of the two types of companies: construction companies have long been dubbed "making money" as the first The image of the contractor with the goal; the design company is dubbed the image of senior intellectuals with "high technology content. The two types of enterprises form a consortium, because of their differences in corporate culture itself, there will be differences in the understanding of the project at the corporate level. In addition, in the development process of the construction industry, the design market is dominated by brand and technology, that is, whether the owner favors a certain design company, mainly focusing on its product reputation, the "star effect" of high-end talents and technical strength. The construction market, on the other hand, is dominated by scale, management methods and construction technology, I .e., the choice of construction companies by owners is more focused on the scale of their local output value and project management capabilities. In the long run, in the pursuit of the goal of the enterprise, the design enterprise as a whole is more inclined to design the value guidance and technical guarantee of the building, the social reputation of the architectural works and the word-of-mouth evaluation of the use unit, while the construction enterprise is more inclined to the research of construction technology and the maximization of the profit of the output value per unit time. The differences in corporate culture between consortia bring about differences in project culture, which will lead to different perceptions of the same thing. The cultural identity and goal direction of the two sides are inconsistent, and the phenomenon of "two skins" will lead to the end of "split" between the two sides of the consortium. differences in enterprise management system In essence, the design enterprise is responsible for the design work and belongs to the intelligence-intensive enterprise; the construction enterprise is responsible for the construction work and belongs to the labor-intensive enterprise. There is a big difference between the two enterprise management systems. The difference in the nature of the enterprise is accompanied by the difference in the management system, the management system of the design enterprise is more inclined to give full play to the designer's creation and research and development value, so the design enterprise in the design project is rarely in accordance with the project management ideas to manage. The construction enterprises need to be responsible for the progress of the construction site, the quality of the project, safety and civilization, so the planning, execution and procedure of their work are the top priority. In the work, the construction management personnel need to wear safety equipment in strict accordance with the management system and guide the construction in the designated area according to the standard process, while the designers are more accustomed to discussing or reporting the design scheme in the office and conference room. Using project management ideas to unify the two separate teams of design and construction, because of the differences in the management system of the enterprise itself, it is easy to lead to "incompatibility" between designers and construction personnel on the same project ". If the consortium design team and construction team are forcibly "bundled", the phenomenon of "two skins" will still be unavoidable because the enterprise system implemented cannot be unified. Differences in Enterprise Salary Distribution System In the traditional mode, due to the relatively short design cycle, the salary distribution assessment of the design enterprise focuses on the amount of work completed within the specified time, that is, the piece-rate system, and the income composition is usually the basic salary and piece-rate income. The distribution mechanism of construction enterprises is more based on the incentive system of project target assessment, that is, it is composed of basic salary and project target assessment award. For a project, due to the large difference between the design cycle and the construction cycle, designers often put into the work of the next project immediately after completing the design work of the project, and the energy invested in the construction phase is extremely limited. But in fact, the design problems fed back from the construction phase are often the key factors that restrict the smooth progress of the project and affect the cost control. Therefore, the differences in the salary distribution system lead to a very uneven investment of design resources in each stage. The design team and the construction team in the same project with different objectives for assessment and distribution, the phenomenon of "two skins" is bound to appear. In addition, the reasons for the "two skins" of the project general contracting joint model include not only the above three types, but also the management methods of the construction unit and the supervision (full consultation) unit to the consortium unit, and the construction department to the project general contracting The supervision method, etc., but the above reasons are the problems that have the greatest impact on the general contracting of the project in the existing system and need to be solved urgently. Forms of Consortium in Other Areas SPV companies in the PPP model. The PPP model, that is, the cooperation between the government and social capital, is a project operation mode in public infrastructure. The participation of social capital, on the one hand, can help the government to improve the project quality and operational efficiency, on the other hand, it will also share the risk of construction with the government [1]. A common structure of the PPP model is an SPV company, which is a subsidiary with an independent legal person established by one or more parent companies for a special purpose. Such a company can borrow from a bank, raise capital from society, or be traded as an equity asset with limited liability. In the construction of infrastructure projects, both government and social capital are shareholders of SPV companies, through which SPV companies sign contracts with contractors for construction, and use the mechanism of SPV companies to assume only limited liability to reduce the risk of both parties [2]. Project Company System for Real Estate Projects The project company system for real estate projects refers to the development of a project by two or more real estate companies by jointly forming a project company and automatically disbanded upon completion of the project to achieve the project objectives at a lower cost. There are two main existing cooperation models: one is that local companies use their own land acquisition advantages to cooperate with companies with more project development capabilities to carry out project development to achieve "strong alliances"; the other is two or more companies. The project company is jointly established as a leader and member to achieve "complementary advantages". This combination of complementary advantages can effectively enhance the development strength of the project and help to eliminate the obstacles in the project development process caused by the management of multiple companies [3]. Joint Project Department (JPD) is an important way to solve the "two skins" The Concept of Joint Project Department (JPD) Based on the concept of SPV company and project company system of real estate project under PPP mode, in order to crack the phenomenon of "two skins" in general contracting mode, the author puts forward the concept of "joint project department" for the consortium mode of general contracting project, that is, to establish a joint project department for a certain project by drawing on the formation mode of SPV and project company. Compared with the original consortium model, the joint project department adopts a unified organizational structure and management system to achieve unified operational objectives and unified salary distribution on the basis of the formation of a consortium through internal agreements between design enterprises and construction enterprises. solve the problem of "two skins" caused by inconsistent objectives and difficulties in integration under the consortium model. Unified organizational structure In terms of organizational structure, the personnel of both enterprises in the joint project department will be separated from the organizational structure of their respective enterprises, and a unified organizational structure will be reorganized according to different functions, which will be divided into leadership, project department management and business department executive level from top to bottom. Among them, the leadership is jointly formed by the two enterprises, representing the will of the two enterprises, making the final decision on the operation of the joint project department, and coordinating with the owners and subcontractors at the top. The management committee has the management decision-making power of the joint project department and coordinates the operation of all business departments under the will of the leadership. The executive layer of the business department carries out corresponding work according to different business sectors, such as design department, commerce department, engineering department, security department, engineering department, security department, quality department, security department, quality department and general department, etc. This kind of personnel organization structure makes the advantageous resources of the consortium effectively integrated, the responsibility interface of the business department will be clearer, the departments will cooperate with each other according to the needs, no longer need to go through the approval of the affiliated enterprise, greatly reduce the redundancy of the process, so as to improve the efficiency of solving problems. Joint Project Department (JPD) organizational structure diagram Unified project objectives Under the guidance of the strategic objectives of the project, the departments at all levels in the joint project department will be truly integrated to carry out their work and resolve the obstacles ahead. For example, when the engineering department finds that the original design scheme has great construction difficulty or even construction danger, it can directly seek the cooperation of the design department and the security department to discuss the optimal solution of the problem. Under the constraints of the common project progress target and safety target, the design department and the safety department are bound to actively cooperate with the engineering department. for example, various schemes are proposed according to the actual conditions on site, and the final solution is obtained under the discussion of the three departments. unified management system On the basis of a unified organizational structure and project objectives, the joint project department takes the business department as a unit and establishes a new management system for the department in accordance with the principle of "dispatching superior resources", that is, based on the original management system of the enterprise with more advantages in this business field, and appropriately absorbs the reasonable content of another enterprise, carries out innovation and integration, and finally integrates each department

2021-09-10

Construction Engineering Environmental Capital Law Review (No. 20)-Analysis of the problem of the contractor's overdue application for the extension of the construction period from the perspective of the judicial interpretation (I) of the new construction project.

Abstract: The parties to the construction contract of the construction project usually agree that the extension of the construction period shall be confirmed by the contractor or supervisor in the form of a construction period visa, and agree on the time limit for the contractor to apply for the extension of the construction period. There is a dispute as to whether the contractor's overdue application for the extension of the construction period should be supported, for this reason, the Supreme People's Court issued the "(I) of Interpretation on the Application of Law in the Trial of Construction Contract Disputes" (Interpretation No. 25 of the Law [2020]) (hereinafter referred to: "(I) for Judicial Interpretation of New Construction Projects") Article 10, paragraph 2, but the book stipulates two exceptional cases in which the contractor's late application for extension of the construction period should be supported. In view of the problem of the contractor's overdue application for construction period extension, this paper starts with the basic problem of construction period extension, introduces the construction period delay events that cannot be attributed to the contractor, analyzes the dispute over whether the contractor's overdue application for construction period extension loses its substantive rights, and analyzes the determination of the contractor's overdue application for construction period extension and the contractor's burden of proof for construction period extension, in order to benefit the practical operation of the construction period extension problem. Key words: time delay, overdue application, burden of proof Due to the non-standard construction market in China, the weak awareness of the rules of all parties, the contractor's legal risk prevention and control ability and management ability are not strong, and in practice, due to the non-cooperation of the contractor, the contractor's right to apply for the extension of the construction period is usually not supported. Especially on the issue of the contractor's overdue application for extension of the construction period, the contractor's legal rights are more vulnerable to infringement. To this end, this paper, based on the (I) of Judicial Interpretation of New Construction Projects, introduces in detail the problem of the contractor's overdue application for extension of the construction period, and puts forward corresponding suggestions. Basic Problems of 1. Period Extension Definition of (I) Duration Extension The extension of the construction period means that in the event of a delay in the construction period that cannot be attributed to the contractor, the contractor obtains the extension of the construction period in accordance with the contract or the legal provisions. The parties usually agree in the construction contract that the extension of the construction period shall be confirmed by the contractor or supervisor by visa, and shall apply for the extension of the construction period within a certain period of time. (II) delay events not attributable to the Contractor include 1. Delay of construction period caused by the Employer Article 803 of the Civil Code stipulates the employer's liability for breach of contract: "If the employer fails to provide raw materials, equipment, sites, funds and technical data in accordance with the agreed time and requirements, the contractor may postpone the date of the project and has the right to request compensation for losses such as work stoppage and work stoppage." Article 798 stipulates the acceptance of concealed works: "Before concealed works are concealed, the contractor shall notify the employer for inspection. If the employer fails to check in time, the contractor may postpone the project date and have the right to claim compensation for losses such as work stoppage and work stoppage." the general clause 7.5.1 of the construction contract (model text) (GF-2017-0201 text) (hereinafter referred to as the "model text") stipulates that the construction period is delayed due to the employer's reasons: "during the performance of the contract, the construction period is delayed and (or) the cost is increased due to the following circumstances, the Employer shall bear the delayed construction period and (or) increased expenses, and the Employer shall pay the Contractor reasonable profits:(1) the Employer fails to provide the drawings as agreed in the Contract or the drawings provided do not conform to the Contract;(2) the Employer fails to provide the construction site, construction conditions, basic data, permission, approval and other commencement conditions as agreed in the Contract;(3) There are errors or omissions in the measurement datum point, datum line and leveling point provided by the employer and their written data;(4) The employer fails to agree to issue the commencement notice within 7 days from the planned commencement date;(5) The employer fails to pay the advance payment, progress payment or completion settlement payment according to the date agreed in the contract;(6) The supervisor fails to issue instructions, approval and other documents as agreed in the contract;(7) Other circumstances as agreed in the terms of the special contract." In addition, Article 11 of the "(I) for Judicial Interpretation of New Construction Projects" stipulates that "before the completion of the construction project, the parties have a dispute over the quality of the project, and the quality of the project has been appraised, the appraisal period shall be the period of the extension of the construction period". The circumstances provided for in this provision are generally due to the contractor's challenge to the quality of the project, and can also be attributed to delays caused by the contractor. 2, according to the law or the contract should bear the adverse consequences of the event. It mainly refers to the occurrence of force majeure events or infectious diseases such as wars, abnormal weather, natural disasters that cannot be reasonably foreseen, and the need for protection of cultural relics found on site, which are not subject to construction will. General clause 17.1 of the model text states that "force majeure refers to natural disasters and social emergencies that are unforeseen by the parties to the contract at the time of signing the contract, inevitable and insurmountable in the course of the performance of the contract, such as earthquakes, tsunamis, plagues, riots, martial law, riots, wars and other situations stipulated in the special contract terms." Article 17.3.2 stipulates: "(4) If the force majeure affects the contractor's performance of the obligations stipulated in the contract, which has caused or will cause the delay of the construction period, the construction period shall be postponed, and the cost and loss of the contractor's shutdown shall be reasonably shared by the contractor and the contractor, and the wages of the workers that must be paid during the shutdown shall be borne by the contractor;" 3. Delays in construction period caused by changes proposed by the Employer or the Supervisor and changes proposed by the Contractor and agreed by the Employer During the performance of the construction contract of the construction project, if there is a design change that exceeds the scope of the original drawing, and the resulting change order, negotiation, change construction preparation, material procurement, mechanical equipment preparation, etc., the contractor has the right to claim to the contractor that the construction period for the increased work content be extended. The General Terms and Conditions of the Model Text 10.6 stipulate that if the construction period changes due to changes, the parties to the contract may request adjustment of the construction period of the contract. Disputes 2. whether the contractor loses the substantive right to apply for the extension of the construction period after the deadline. The construction contract for a construction project usually stipulates: "The contractor shall apply to the contractor or supervisor for an extension of the construction period within a certain time limit, and shall be confirmed by the contractor or supervisor's visa, and if the contractor fails to claim the extension of the construction period within the agreed time limit, it shall lose the right to request the extension of the construction period. Item (1) of Article 19.1 of the General Terms of the Model Text stipulates: "The contractor shall, within 28 days after knowing or should have known the occurrence of the claim, submit a notice of intention to claim to the supervisor and explain the cause of the claim; If the contractor fails to issue the notice of intention to claim within the aforementioned 28 days, it shall lose the right to request additional payment and (or) extension of the construction period." This article provides for a system of claim period, which requires the contractor to claim to the contractor within 28 days of the extension of the construction period, compensation for the increased costs and payment of reasonable profits for delays not caused by the contractor. Although the claim period stipulated in the Model Text can urge both parties to the contract to claim their rights in a timely manner, it has caused many disputes in practice. In practice, there are two views on whether the contractor loses the substantive right to apply for the extension of the construction period after the deadline: One view is that the failure of the contractor to apply for an extension of the construction period is not necessarily a loss of authority. The main reason is that the system of time limits for claims under the Model Text is not the same as the statute of limitations and the period of exclusion. First of all, the period of claim stipulated in the Model Text is agreed upon by the parties, while the limitation of action and the period of exclusion are the statutory system stipulated in the General Principles of Civil Law, and the overdue "right" agreed by the parties should not be recognized as the loss of substantive rights, and the elimination of substantive rights should be stipulated by the mandatory law. Secondly, from the actual effect, after the expiration of the statute of limitations, the obligor has the right to refuse to perform the defense, the right holder loses the right to win the case, and the contractor's late extension of the duration of the project has not been eliminated. The loss of rights in the Model Text refers to the loss of procedural rights, the failure of the contractor to claim an extension of the duration within the agreed time limit, and the loss of such procedural rights due to the failure to provide timely and effective evidence, not a direct loss of substantive rights. If the right holder has sufficient evidence to prove that his rights and interests have been damaged, he shall not be deprived of his right to claim compensation within the statute of limitations. If the authenticity of the relevant facts is unknown, the claimant shall bear the adverse consequences. Another view is that if the contractor applies for an extension of the construction period within the time limit, it will have the legal consequences of the elimination of the right to win in the proceedings. First of all, "the law does not protect those who sleep on their rights", the claim period in the Model Text is similar to the statute of limitations system in civil law, and if the contractor delays the time limit, the court should not protect its substantive rights before the arbitration body. In addition, from the principle of reciprocity of rights, the Model Text 19.2 stipulates: "(2) The contractor shall, within 28 days after the supervisor receives the claim report or further supporting materials related to the claim, the supervisor shall issue to the contractor the results of the claim processing signed by the contractor. If the contractor replies late, it shall be deemed to approve the contractor's claim;" Similarly, if the contractor applies for an extension of the construction period late, it shall be deemed that the construction period is not extended. 3. Determination of Contractor's Overdue Application for Extension of Construction Period from the Perspective of (I) for Judicial Interpretation of New Construction Projects In view of the great controversy in judicial practice about whether the contractor loses the substantive right to apply for the extension of the construction period after the deadline, the second paragraph of Article 10 of the (I) on Judicial Interpretation of New Construction Projects stipulates: "If the parties agree that the contractor fails to apply for the extension of the construction period within the agreed time limit, it shall be handled in accordance with the agreement, except that the employer agrees to extend the construction period after the agreed time limit or the contractor raises a reasonable defense." According to this provision, the (I) for Judicial Interpretation of New Construction Projects adopts the principle of respecting the autonomy of the parties, and there is an agreement to follow its agreement. In addition, the book provides two exceptions: that is, if the employer explicitly agrees to the extension of the construction period or if the contractor provides reasonable defense against the failure to apply within the agreed time limit, the people's court shall support the contractor's claim to extend the construction period. The provisions of the (I) for Judicial interpretation of New Construction projects not only reflect the principle that "the law does not protect people who sleep on their rights" and fully respect the autonomy of the parties, but at the same time, the two exceptions stipulated in the book require the court to examine the contractor's reasonable defense and evidence, and determine whether the construction period should be postponed according to the degree of proof. According to the provisions of the (I) of Judicial Interpretation of New Construction Projects, it can be seen that:(1) The court or arbitration institution shall judge the meaning of the parties according to the agreement of the construction contract and the actual performance of the parties. Although the Contractor fails to apply to the Employer for the extension of the construction period according to the agreed time limit, if the Employer indicates that it agrees to the extension of the construction period through relevant meeting minutes, correspondence, commitment letter, etc. after the agreed time limit, it shall be deemed that the Employer and the Contractor have changed the original contract agreement and the agreed time limit for claim shall no longer apply. (2) The contractor puts forward reasonable defense reasons. If the project is changed due to the employer, the project quantity is increased, the situation changes such as war, abnormal climate, natural disasters and force majeure events cause the project to stop, and the contractor gives a reasonable explanation to the fact that the construction period is delayed. At this time, the court shall also approve the extension of the construction period as appropriate. The judge should, according to the rule of thumb and in line with the concept of pursuing fairness and justice, examine the evidence more reasonably, determine the facts, and exercise discretion cautiously, and should not support the contractor's claim to postpone the construction period. In practice, another situation is that the contractor and the contractor have agreed on the time limit for applying for the extension of the construction period, but they have not agreed that the overdue claim for the extension of the construction period shall be regarded as the non-extension of the construction period or as a waiver of the right, and it cannot be directly determined that the contractor's overdue application for the extension of the construction period is a waiver of the right to claim the extension. 4. The Contractor shall bear the burden of proof for the extension of the construction period. If the contractor applies for the extension of the construction period within the time limit and requests the employer to compensate for the losses, in addition to giving a reasonable explanation to the fact of applying for the extension of the construction period within the time limit, the contractor shall also bear the burden of proof for the following facts, including:(1) the fact that the construction period is not attributable to the contractor;(2) the fact that the construction period can be extended for specific days and the calculation method;(3) Causality between the fact of construction period delay and the actual number of days of construction period delay (the measurement of causality is usually based on whether the influence of the fact on the construction acts on the key line). Proof of common construction period extension: 1. The Employer fails to provide raw materials, equipment, site, funds, technical data, drawings and commencement conditions in accordance with the agreed time and requirements. The above facts are caused by the Employer's breach of contract. In this case, if the Contractor claims to postpone the construction period and requests the Employer to compensate for the losses, it shall bear the burden of proof for the following facts: ① the fact that the Employer has breached the contract; ② the number of days that the construction period can be postponed and the calculation method; ③ the losses suffered by the Contractor due to the delay of the construction period and the specific amount. 2, according to the law or the contract should bear the adverse consequences of the event. What is mentioned here mainly refers to the occurrence of force majeure events such as wars, abnormal weather, natural disasters, etc. that cannot be reasonably foreseen, or infectious diseases, and the need to protect cultural relics found on site, which are not subject to the will of the contractor. The Contractor shall provide evidence of the following facts: ① evidence of the existence of the above-mentioned force majeure event or accident; ② the force majeure event or accident is sufficient to have a serious impact on the construction period. 3, due to the contractor or supervisor proposed changes, as well as by the contractor, and agreed by the contractor caused by the change delay or increase in the amount of work. The construction period delay includes critical line delay and non-critical line delay, and the causality is usually measured on the basis of whether the impact of the fact on the construction works on the critical line. The critical line is also called critical path, which is the route with the longest total working duration on the line, I .e. the route with the longest construction period. The total duration of all processes on the critical line is the total construction period of the project. Any delay of any process on the critical line will cause the delay of the total construction period of the project. Non-critical lines have a certain floating time. If the delay of the construction period is less than the floating time, it will not affect the total construction period. Therefore, in the case that there is a change or increase in the amount of work in the project, and the contractor and the contractor have not formed the construction period visa, meeting minutes and other supporting materials, it is necessary to judge whether the impact of the change or increase in the amount of work on the construction works on the key line. If the contractor claims to postpone the construction period or compensate for the loss due to the change proposed by the employer or the supervisor, as well as the change proposed by the contractor and agreed by the employer, the following facts shall be proved in addition to the fact that the design change or increase of the engineering quantity caused by the employer: ① there is a causal relationship between the design change or increase of the engineering quantity of the employer and the delay of the construction period, the impact of engineering changes or increases in the amount of work on the construction of key lines; ② specific costs incurred by the contractor due to design changes or increases in the amount of work. In addition, it should be noted that design changes do not necessarily lead to delays, and if they are optimization changes, they may shorten the duration. 4, the contractor failed to pay the project advance payment, progress payment according to the date agreed in the contract. If the contractor fails to pay the project funds as agreed in the contract, the contractor may require the contractor to pay the project funds and interest, which may not necessarily cause delay in the construction period. If the contractor does not stop work, the contractor's failure to pay the project as agreed will not have a material adverse impact on the contractor's construction. In addition, if the contractor fails to pay the progress payment and the advance payment in accordance with the contract because of the contractor's delay in the construction period and the quality of the project, it is not appropriate to determine that the construction period can be extended or to require the contractor to compensate for the loss. Therefore, the contractor failed to comply.

2021-09-08

Real Estate Perspective: Highlights of the Guidelines on Regulating the Seizure, Seizure and Freezing of Property in the Real Estate Sector

Recently, the Shandong Higher People's Court formulated the "Guidelines on Regulating the Seizure, Seizure, and Freezing of Property" (hereinafter referred to as the "Work Guidelines"), which will come into effect on August 6, 2021. The Work Guidelines are formulated in accordance with the provisions of the the People's Republic of China Civil Procedure Law, the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Property Preservation Cases by the People's Courts, and the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Execution by the People's Courts and other laws and judicial interpretations, combined with the actual trial execution work of the courts in the province, the purpose is to standardize the measures of sealing up, detaining and freezing in the preservation and execution of civil litigation, to prevent over-standard, over-range and over-time seizure, and to safeguard the legitimate rights and interests of the parties in accordance with the law. The work guidelines are divided into 36 articles, covering the general provisions, the seizure, seizure and freezing of all kinds of property, as well as relief procedures, etc., in the estimation of property value, the execution concept of good faith and civilization of the court, as well as the processing when it comes to the presale of commercial housing, have been improved and innovated, and responded to many problems in practice, thus effectively improving the operability of the judicial level. In this article, our lawyers summarize the highlights of the Work Guidelines in the real estate sector. A uniform method of estimating the value of real estate has been developed. According to Article 21 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement of the People's Courts, the seizure, seizure and freezing of the property of the person subject to execution shall be limited to the amount of the claim and the execution expenses determined by the legal document, and shall not be sealed, seized or frozen significantly beyond the amount of the subject matter. The current provisions clearly prohibit the court from seizing the amount of the subject matter, and in the preservation and enforcement procedures, the value of real estate, land use rights, construction in progress and other real estate is often unable to determine, the specific value must be subject to the assessment report, and the assessment procedure is later placed in the seizure, freezing, seizure procedures. Therefore, in the seizure of real estate, land use rights, construction in progress and other real estate, how to avoid the amount of seizure, has become a major problem in judicial practice. The "work guidelines" clearly require that the property value should be estimated when sealing up, detaining or freezing the property of the person subject to execution, and a unified estimation method should be formulated for the value of real estate, land use right and construction in progress, which reduces the arbitrariness of value estimation and provides a way to avoid over sealing up real estate in judicial practice. Law Index: Guidelines of the Higher People's Court of Shandong Province on Regulating the Seizure, Seizure and Freezing of Property Article 1: To seal up, seize and freeze the property of the person subject to execution (or the person subject to preservation, the same below), the amount of the subject matter of execution and the value of the sealed up, seized and frozen property and the value of the sealed up, seized and frozen property available for execution (I. e. the amount of the property that can be used to pay off the creditor's rights in this case) shall be estimated, and the value of the sealed up, the amount obviously exceeding the target shall not be sealed up, detained or frozen. Article 3: The value of seized, seized or frozen property may be estimated in the following manner:(2) If the property is seized, the value of the seized property shall be estimated by reference to the value of the property in the same location and under the same conditions. If the seized property is a first-hand house, you can refer to the sales price of the real estate development enterprise and the guide price issued by the local real estate management department; if the seized property is a second-hand house, you can refer to the price approved by the tax authority and the second-hand house market transaction price. (3) If the land use right is seized, the value of the seized property shall be calculated by reference to the amount of the transfer recorded in the land transfer contract. (4) If the construction in progress is pre-sealed, the value of the sealed-up property shall be estimated with reference to the amount of investment in the project, the amount of work completed, demolition and resettlement, sales, etc. Article 4: In addition to bank deposits, if the parties have an agreement on the value of the seized, seized or frozen property, the value of the seized property may be estimated by reference to the agreement of the parties. Protection of the legitimate rights and interests of the priority recipients In judicial practice, when the court estimates the value of the real estate to be sealed up, it may omit the priority compensation rights of the construction project price, mortgage and other priority compensation rights on the real estate, especially the priority compensation right of the construction project price cannot be found in the real estate registration authority, so it is easier to be ignored in the evaluation of the execution of the property. In order to safeguard the legitimate rights and interests of the priority payee such as the actual builder and the mortgagee, the Work Guidelines clearly stipulate that if there is a known priority of the construction project price, mortgage, pledge, lien, etc. on the subject matter, the priority payment amount shall be deducted when estimating the value of the property available for execution. Law Index: Guidelines of the Higher People's Court of Shandong Province on Regulating the Seizure, Seizure and Freezing of Property Article 6: Where there is a known priority right, mortgage, quality right, lien, etc. on the subject matter of the seizure, seizure or freezing of the construction project price, the amount of priority compensation shall be deducted when estimating the value of the seized, seized or frozen property available for execution. Clarify the rules for the seizure of commercial housing presale by development enterprises. (1) When the real estate development enterprise purchased by the executed person presale commercial housing, the "Work Guidelines" clarify the main identity of the real estate management department and the real estate development enterprise to assist the obligor, and provide assistance obligations of the real estate development enterprise in two aspects Provisions: one is to notify the enforcement court when the house meets the transfer registration conditions, and the other is to pay the purchase price directly to the court account when the commercial housing sales contract is terminated. This regulation fully takes into account the characteristics of presale commercial housing, no matter whether the commercial housing sales contract can continue to be performed, the executor can get the final compensation, effectively improving the efficiency of implementation. At the same time, the "Work Guidelines" stipulate that when the court seals up the presale commercial housing purchased by the person subject to execution, the real estate development enterprise has the right to apply for execution objection. (2) When the person to be executed is a real estate development enterprise, the Work Guidelines clearly stipulate that the commercial housing under its name that has been approved for sale (pre-sale) can still be sealed up, but the fact that it has been sold and delivered should be ascertained and recorded. The seizure record is sufficient. In judicial practice, when the developer is the person to be executed, the court is always hesitant about whether the commercial housing that has been presale can be sealed up. This "Work Guidelines" clarifies that such commercial housing can be sealed up. If outsiders in the presale commercial housing case believe that the court's seizure infringes their own legitimate rights and interests, they can apply to the enforcement court to exclude enforcement. Law Index: Guidelines of the Higher People's Court of Shandong Province on Regulating the Seizure, Seizure and Freezing of Property Article 17: If the real estate development enterprise presale commercial housing purchased by the executed person is sealed up, the real estate management department and the real estate development enterprise shall be the obligor. The notice of assistance in execution served on the real estate development enterprise may state that when the house meets the conditions for transfer registration, the enforcement court shall be notified. When the real estate development enterprise and the person subject to execution terminate the sale contract, the purchase of the house shall be returned to the person subject to execution according to the contract. The money is paid to the court account. During the pre-seizure period, if the sales contract is terminated in accordance with the law, and the real estate development enterprise pays the purchase price to the court account, the enforcement court shall lift the pre-seizure. In the process of execution, if the real estate development enterprise requests the exclusion of execution, it shall be examined in accordance with the provisions of Article 227 of the Civil procedure Law. Article 18: If the person subject to execution is a real estate development enterprise, the commercial housing under its name that has been approved for sale (pre-sale) may be sealed up, but the facts of the sale and delivery of the real estate shall be ascertained and recorded in the seizure record. In the process of execution, if an outsider requests the exclusion of execution, it shall be examined in accordance with the provisions of Article 227 of the Civil Procedure Law. Rules for reconciliation of parties after excess seizure Under the current regulations, when the real estate subject is over-sealed, the court often decides whether to unseal it based on the objection of the party being executed, and then raises an enforcement objection to the party who is not satisfied with the court's decision. The Work Guidelines stipulate the reconciliation rules for the parties after the over-seizure, that is, if the person subject to execution considers that the seizure is obviously over-standard, the enforcement court may organize the person subject to execution and the person applying for execution to negotiate, and if the person applying for execution approves, the seizure of the over-standard part may be directly lifted. This provision can effectively improve the efficiency of implementation and save judicial resources. Law Index: Guidelines of the Higher People's Court of Shandong Province on Regulating the Seizure, Seizure and Freezing of Property Article 33: If the enforcement court finds that the seizure is obviously over-standard, it may lift the seizure of the over-standard part ex officio. If the person applying for execution is not satisfied with the act of dissolution, it shall be examined in accordance with the provisions of Article 225 of the Civil Procedure Law.

2021-09-07

Review of Construction Environmental Capital Law (No.18) | Interpretation and Response of Jinan Urban Renewal Policy

        2021年8月10日，住房和城乡建设部官网发布了《关于在实施城市更新行动中防止大拆大建问题的通知（征求意见稿）》，文件指出，在城市更新过程中，出现继续沿用过度房地产化的开发建设方式，大拆大建，急功近利的倾向，产生了新的城市问题。自2017年至今，济南市先后发布《关于优化城市更新项目前期工作管理流程的实施意见》（济更组字[2017]3号）、《关于加强历史风貌保护深入推进城市有机更新的若干措施》（济自然规划发[2020]204号）、《济南市城市更新财政专项资金管理办法》（济财综[2020]30号）、《关于加强历史文化保护深入推进城市有机更新的通知》（济政办字[2020]50号）、《济南市旧区改造类城市更新项目认定标准及相关工作实施流程》的通知（济更组字[2020]2号）等文件对济南市城市更新工作做出规定，其中2020年11月23日济南市人民政府办公厅发布的《关于加强历史文化保护深入推进城市有机更新的通知》（济政办字[2020]50号），发布单位级别最高、对济南市城市更新政策规定最为系统全面，现以《关于加强历史文化保护深入推进城市有机更新的通知》（济政办字[2020]50号）为基础，结合上述其他文件，对济南市城市更新政策进行系统梳理，并结合房地产企业经营情况提出应对建议。   一、城市更新的指导思想与基本原则          围绕建设“大强美富通”现代化国际大都市目标任务，坚持“留改拆”并举，统筹历史文化名城保护和城市人居环境改善，加大各类资源、要素整合力度，加强体制机制创新，积极稳妥实施城市有机更新，完善城市功能，传承历史文脉，提升省会城市活力和品质。        坚持因地制宜，分类确定更新方式，宜留则留，宜改则改，宜拆则拆。坚持重点片区带动，将城市历史风貌区、重要功能区、改造潜力大的城乡接合部作为城市更新的重点区域，精准发力，带动全市城市更新整体推进。   二、城市更新项目前期工作流程           《关于优化城市更新项目前期工作管理流程的实施意见》（济更组字[2017]3号）中，对于济南市城市更新项目的前期工作流程做了较为详细的规定，按照近期和中期相结合的原则，改进和完善济南市城市更新前期管理机制和流程。近期内，主要针对纳入棚改计划的棚改项目以及旧住区、旧厂区、旧院区、旧市场等更新改造项目，中期内，逐步将目前以“城市更新项目”为单位实施项目策划和管理的做法，调整为以“城市更新单元”为项目策划研究对象，通过编制城市更新单元实施策划方案和城市更新年度计划，强化更新统筹管理。   （一）城市更新单元实施策划方案编制及审查流程 1、划定城市更新单元。市城市更新局会同区政府或承担更新任务的市级投融资平台综合考虑控制性详细规划、基础设施和公共服务设、自然要素及产权边界等因素共同划定城市更新单元具体范围。 2、编制城市更新单元实施策划方案。在对更新单元内现状情况全面调查摸底的基础上，由各区政府或承担更新任务的市级投融资平台（简称方案编制主体）编制城市更新单元实施策划方案。 3、城市更新单元实施策划方案审查审议。方案编制主体将编制完成的城市更新单元实施策划方案提报市城市更新局和市规划局。市城市更新局会同市规划局按照各自职责和侧重点对城市更新单元实施策划方案进行预审。市城市更新局、市规划局预审后，市城市更新局组织发改、财政、国土、规划、审计等部门，以城市更新联合办公会的形式对城市更新单元实施策划方案进行联合审查，出具联合审查意见。方案编制主体根据联合审查意见及专家论证意见对实施策划方案进一步修改完善后报市城市更新领导小组审议。   （二）城市更新年度计划编制流程         城市更新年度计划包括城市更新单元实施策划方案编制计划和城市更新项目实施计划。 1、提出计划申请。各区政府、市级投融资平台于每年6月底前向市城市更新局提出下年度编制城市更新单元实施策划方案的计划和城市更新项目实施计划。 2、审查和审定。市城市更新局对各区、市级投融资平台提报的更新单元实施策划方案编制计划和项目实施计划汇总整理并初步审查，形成全市城市更新年度计划（包括更新单元实施策划方案编制计划和项目实施计划），并组织城市更新联合办公会审查。根据联合审查意见修改后的城市更新年度计划报市领导小组审议。 3、计划下达。市城市更新局将经市领导小组审定后的城市更新年度计划正式下发实行。   三、城市更新和历史风貌保护实施方案的编制与认定   （一）编制城市更新和历史风貌保护实施方案         各区政府对本年度拟实施的城市有机更新和历史风貌保护项目进行梳理，根据项目成熟条件开展风貌评估，确定保护与更新方式，制定项目实施方案，并组织专家论证、公众参与等相关工作。 1、开展风貌评估。开展相关地块规划评估，按照名城保护规划、控制性详细规划等规划要求，评估城市有机更新、历史风貌保护项目所在地区历史风貌特色和空间景观特征，按照应保尽保的原则，对建成30年以上的建筑进行价值甄别。根据规划评估的要求，结合保护保留对象的实际使用状态、权利人意愿，合理确定保护与更新方式。 2、编制项目实施方案。在落实城市有机更新、风貌 保护、地区功能、环境可支撑的前提下，区政府统筹规划土地、城市有机更新、财税等政策，结合功能研究、公共设施及市政配套、资金测算，经方案比选，形成可操作的项目实施方案。编制风貌评估和实施方案过程中， 应当征求市区相关部门、利益相关人、专家、社会公众的意见。   （二）认定城市更新和历史风貌保护项目        各区政府将年度工作计划及项目相关的风貌评估、实施方案等报送至市城市更新工作领导小组办公室。市城市更新工作领导小组办公室组织相关部门对各区政府申报的项目进行认定，在此基础上经全市综合平衡，形成全市城市有机更新和历史风貌保护项目年度工作计划。   四、城市更新保护实施方式          经认定的城市有机更新和历史风貌保护项目，可采取旧区改造、原权利人单独实施或多方共同参与、成套改造的风貌保护更新、市场化收购、房屋置换、代为修缮等多种方式实施。 1、旧区改造。对于达到国家、省棚户区 （含城中村）认定标准，区域形象整体较差，无保留保护价值的老旧房屋，征收拆迁后整体拆除，腾出的土地按照规划要求实施开发建设。占地面积较小、单处改造户数较少的零散棚户区或改造后用地不具备开发建设条件的区域，腾空的土地可用于完善社区功能，建设停车场、公共绿地、休闲广场等公共设施。征收拆迁补偿政策按照我市国有土地房屋征收、城中村改造相关政策执行。        针对纳入旧区改造范围，规划确定需成片或局部保护保留的功能更新区域，可通过 “征而不拆"实施土地储备；规划确定应整体更新的区域, 通过“整体改造”实施土地储备。        《济南市旧区改造类城市更新项目认定标准及相关工作实施流程》的通知（济更组字[2020]2号）对旧区改造项目的认定标准、旧区改造城市更新实施流程、旧区改造项目规划实施方案编制、审核流程做了详细具体规定。 2、原权利人单独实施或多方共同参与更新方式。重点针对规划确定的风貌保护保留地块，原权利人单独实施或引入有能力实施保护更新的合作单位，实施风貌保护更新。 3、成套改造更新方式。以成套房屋为主的老旧房屋，通过整治修缮、完善配套基础设施与公共服务设施等方式增加公共空间与配套设施，提升空间品质，改善居住环境。针对规划确定的以保护保留为主的公有房屋，由政府投资增加配套和基础设施，保留原使用功能，并通过解除部分租赁关系等方式进行成套改造，改善居民的生活环境。 4、实施房屋翻建。对于达到D级危险房屋标准、用地条件允许的老旧房屋，由产权人依照相关法律程序实施房屋翻建；翻建房屋涉及多个产权人的，可依法依规由辖区政府指定机构组织翻建。   五、城市更新保障措施   （一）加大财政支持力度        统筹建立我市城市更新财政专项资金，用于全市城市更新改造支出。相关区统筹土地出让返还和财税等各类财政收入，稳步加大城市更新投入，力争实现区内项目投入产出整体平衡。经认定的重点城市更新项目所产生的土地出让金，在扣除国家和省规定计提的相关基金后，全部返还区财政，平衡改造成本。        《济南市城市更新财政专项资金管理办法》（济财综[2020]30号）第六条规定：“经认定并实施的历史街区、风貌区和重点旧改片区取得的市级全部土地出让收入，扣除按国家、省规定计提的专项资金后，全部用于对相关片区改造。”第九条规定：“市级专项资金对社会资本参与成片历史街区、风貌区地块改造项目贷款按年度予以一定比例及一定期限的利息补助。具体办法另行研究制订。”（房地产开发企业参与符合本条规定的改造项目，可以获得一定的利息补助。） 第十二条规定：“纳入市级专项资金补助范围的各类旧住房和保护建筑修缮改造项目应当委托专业审价审计单位进行工程审价和财务决算审计，审价审计单位由市住建局牵头会同市财政局通过公开招标确定，并开展相关考核管理工作。”（根据本条规定，房地产开发企业参与上述项目，应当做好工程造价及财务管理工作，确保资金使用合法合规。）   （二）制定配套政策        合理划分城市更新项目建设阶段，符合条件的项目，允许项目实施主体通过“带实施方案挂牌”等方式获得土地使用权，并按照区域规划实施滚动开发建设。项目建设资金将以经营性资产出售、自持经营、对外合作开发等方式产生的收入进行平衡，缺口部分通过组合地块、规划调整、财政贴 息、财政补贴等方式弥补。探索建立城市更新、历史风貌保护土地开发权转移机制，允许历史风貌保护相关用地因功能优化再次利用。 1、完善规划支持政策        （1）开发权转移。因历史风貌保护需要难以按照已批规划容量实施的项目，允许进行开发权转移，并优先在临近地块和本行政区内平衡。容量的转出和转入在总体规模上应基本保持不变，如转移过程中功能发生变化，应当重新评估核定建筑规模。开发权转移确实难以在本行政区域内解决的，可在全市统筹解决。（因为历史风貌保护原因，难以按照已批规划实施项目，房地产开发企业可以进行开发权转移，在临近地块或其他区域获得开发补偿。）        （2）规划用地性质调整。在确保城市历史风貌及公共利益的前提下，允许历史风貌保护相关用地因功能优化再次利用，经专家论证可行的，报市城市更新工作领导小组研究同意后，允许进行用地性质和功能调整，并作为管理依据。历史文化街区、传统风貌区内鼓励符合历史风貌保护要求的用地性质兼容。        （3）建筑面积奖励。除风貌评估确定的法定保护保留对象外，区政府、原权利人及建设主体主动原址保护且经认定确有保护保留价值的新增历史建筑，用于经营性功能的，原则上可按新增历史建筑容量的30%不计入容积率，具体比例结合审定的方案确定；用于公益性功能的，原则上可全部不计容积率。（房地产开发企业主动参与原址保护且经认定确有保护保留价值的新增历史建筑，房地产可发企业可以获得建筑面积补偿。）        （4）历史风貌保护相关建筑技术管理规定。因历史风貌保护、延续城市历史空间肌理需要，在满足消防、安全等要求的前提下，经评审后，有关保护保留建筑的更新改造和新建建筑的间距、退让、面宽、密度、绿地率等指标可以按原历史建筑的空间格局控制。因保护历史风貌需要而无法达到规定的消防标准的，由主管部门在职责范围内制定相应的保障方案，经专家评审后实施。 2、完善土地支持政策        （1）旧区改造更新项目。原则上由各区政府通过土地储备方式对旧区实施土地房屋征收补偿安置，风貌保护实施项目涉及经营性用地的，可采取保留建筑物带实施方案挂牌方式出让。通过“整体改造”方式实施的旧区改造更新项目，报市城市更新工作领导小组研究同意后，可采取带实施方案挂牌方式出让。        （2）原权利人单独实施或多方共同参与更新项目。原权利人或其引入的合作单位，按城市有机更新和历史风貌保护管理要求，通过存量补地价方式，签订土地出让补充合同，保护保留建筑实施更新开发。

2021-09-02

Review of Construction Environmental Capital Law (No.17) | Seven Departments Jointly Issued "Provisions on Wage Deposit for Migrant Workers in Engineering Construction Field"

2021-08-31

J & T Capital Watch... IPO shareholder verification requirements in the era of registered 2.0.

2021-08-27

Real Estate Perspective: Highlights of the Regulations on the Implementation of the Land Management Law

2021-08-24