Notice of the Ministry of housing and urban rural development on printing and distributing the administrative measures for the identification, investigation and punishment of illegal acts of construction project contracting and contracting: JSG [2019] No.1, Department of housing and urban rural development of provinces and autonomous regions, municipal housing and urban rural construction (Management) Commission, housing and Urban Rural Construction Bureau of Xinjiang production and Construction Corps: in order to standardize construction project contracting and contracting activities and ensure project quality Quality and construction safety, effectively curb illegal contracting, subcontracting, illegal subcontracting, affiliation and other illegal acts, and maintain the order of the construction market and the legitimate rights and interests of the main participants in construction projects
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Our department has formulated the “management measures for the identification, investigation and punishment of illegal acts of contracting and contracting of construction projects”, which is now printed and distributed to you, please follow
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If you encounter any problems in the implementation, please write to the construction market supervision department of our department in time
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The Ministry of housing and urban rural development of the people’s Republic of China on January 3, 2019 (this initiative is open) the first article of the administrative measures for the identification, investigation and management of illegal acts in the construction project contracting and contracting activities is to standardize the identification, investigation and management of illegal acts in the construction project contracting and contracting activities, and ensure the project quality According to the construction law of the people’s Republic of China, the bidding law of the people’s Republic of China, the contract law of the people’s Republic of China, the regulations on the quality management of construction projects and the regulations on the safety production management of construction projects《 According to the implementation regulations of the bidding law of the people’s Republic of China and other laws and regulations, as well as the opinions of the legal working committee of the National People’s Congress on whether it belongs to subcontracting and the application of the law in determining the two-year retroactive period of administrative punishment after the parent company of a construction enterprise undertakes the project to its subsidiary company (fgbf [2017] No
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223), these measures are formulated in combination with the practice of construction activities
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Article 2 the term “construction projects” as mentioned in these Measures refers to housing construction and municipal infrastructure projects and their ancillary facilities as well as their supporting lines, pipelines and equipment installation projects
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Article 3 the Ministry of housing and urban rural development shall exercise unified supervision and management over the identification and investigation of illegal acts of contracting and contracting construction projects nationwide
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The competent department of housing and urban rural construction of the local people’s government at or above the county level shall, within the scope of its duties, be specifically responsible for the identification and investigation of illegal acts of contracting and contracting construction projects within its administrative region
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The illegal acts of contract awarding and contracting mentioned in these Measures refer to illegal contract awarding, subcontracting, illegal subcontracting, affiliation and other illegal acts
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Article 4 the construction unit and the Contractor shall sign the contract in strict accordance with the law, clarify the rights, obligations and responsibilities of both parties, strictly prohibit illegal contracting, subcontracting, illegal subcontracting and affiliation, and ensure the project quality and construction safety
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Article 5 “illegal contract awarding” as mentioned in these Measures refers to the contract awarding activities of construction units to individuals or units without corresponding qualifications, dismembering contract awarding, contract awarding in violation of legal procedures and other contract awarding activities in violation of laws and regulations
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Article 6 Contract awarding is illegal under any of the following circumstances: (1) a construction unit contracts a project to an individual; (2) a construction unit contracts a project to a unit without corresponding qualifications; (3) it should invite tenders according to law but fails to invite tenders or fails to contract contracts according to legal bidding procedures; (4) the construction unit sets up unreasonable bidding procedures (5) the construction unit divides the construction of a unit project into several parts and contracts them to different general contractors or specialized contractors
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Article 7 The term “subcontracting” as mentioned in these Measures refers to the act that the Contractor fails to perform the responsibilities and obligations stipulated in the contract after contracting the project, and transfers all the contracted projects or dismembers all the contracted projects to other units or individuals for construction in the name of subcontracting
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Article 8 any one of the following circumstances shall be deemed as subcontracting, except for those proved to be affiliated or other illegal acts: (1) the contractor transfers all the contracted projects to other units (including the situation that the parent company, after undertaking the construction projects, entrusts the undertaken projects to a subsidiary company with independent legal personality for construction) or individuals for construction; (2) the contractor dismembers all the contracted projects and transfers them to other units or individuals for construction in the name of subcontracting; (3) the general construction contractor or professional contractor does not appoint the project leader, technical leader, quality management leader, safety management leader and other main management personnel, or the project leader and technical leader One or more persons in charge of quality management or safety management have not signed a labor contract with the construction unit and have not established the relationship between labor wage and social endowment insurance, or the dispatched project leader has not organized and managed the construction activities of the project, and can not reasonably explain and provide corresponding certificates; (4) the contract stipulates that the Contractor shall be responsible for the procurement The main building materials, components, fittings and engineering equipment or the leased construction machinery and equipment are purchased or leased by other units or individuals, or the construction unit can not provide the relevant purchase and leasing contracts and invoices and other certificates, and can not reasonably explain and provide the corresponding certificates; (5) the scope of contracting by the professional operation contractor is all the projects contracted by the contractor, and the scope of professional operation contractor is the whole project contracted by the contractor (6) the contractor directly or in disguise transfers all the contracted projects to other units or individuals for construction in the form or name of cooperation, joint venture or individual contracting; (7) the employer of a professional project is not the general contractor or contractor of the project (8) the contracting unit for professional operation is not the contracting unit for the project; (9) there is no relationship between the main bodies of the construction contract in terms of project payment, or the contracting unit transfers the funds to other units and individuals after receiving the funds, and it is unable to give a reasonable explanation and provide material proof
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If two or more units form a consortium to contract a project, it is agreed in the division of labor agreement of the consortium or in the actual implementation process of the project that one party of the consortium neither carries out construction nor organizes and manages the construction activities, and collects management fees or other similar fees from other parties of the consortium, it shall be deemed that one party of the consortium subcontracts the contracted project to other parties of the consortium
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Article 9 “affiliation” as mentioned in these Measures refers to the act of units or individuals contracting projects in the name of other qualified construction units
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The term “contracted project” as mentioned in the preceding paragraph includes participation in bidding, conclusion of contract, handling of relevant construction procedures, engaging in construction and other activities
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Article 10 any of the following circumstances shall be regarded as affiliation: (1) unqualified units or individuals borrow the qualification of other construction units to undertake projects; (2) qualified construction units borrow the qualification of each other to undertake projects, including those with low qualification grade, those with high qualification grade, those with high qualification grade and those with low qualification grade Borrowing from each other; (3) under the circumstances specified in items (3) to (9) of the first paragraph of Article 8 of these measures, there is evidence to prove that it is affiliated
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Article 11 The term “illegal subcontracting” as mentioned in these Measures refers to the act of a contractor, in violation of laws and regulations, to subcontract a unit project or a sub project to another unit or individual for construction.
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