1 the origin, development (different local models) and nature of the agent construction system
1. 1 government investment agent construction model represented by Xiamen and Beijing (hereinafter referred to as Beijing model)
The agent construction model originated in Xiamen. Since 1993, in the process of deepening the reform of engineering construction management system, Xiamen has adopted bidding or direct entrustment to solve the disadvantages of "construction, supervision and use" in the management of municipal financial investment and financing social undertakings, and the resulting problems such as difficult construction of engineering projects according to law, low management level of engineering construction and corruption. Entrust some infrastructure and social public welfare government investment projects to some powerful professional companies, which will implement the project construction instead of the owners, and constantly improve this way in the reform, and gradually develop into the current project agent system. In July, 20001year, Xiamen began to fully implement the project agent construction system in key construction projects, and formulated the Interim Measures for the Administration of Agent Construction System in Key Construction Projects in Xiamen. In March, 2002, the construction agent system was implemented in social welfare projects with a total investment of150,000 yuan, and the Trial Measures for the Management of Municipal Financial Investment and Financing Social Undertakings in Xiamen was formulated.
On May 24th, 2002, the Interim Provisions of Ningbo Municipal Government on the Construction Agent System for Investment Projects was promulgated and implemented, which stipulated that all construction projects with an investment of more than 2 million yuan in Jian 'an project and 2 million yuan in municipal finance should be implemented on an agent basis if the construction unit does not have the conditions for self-management.
Since 2002, the Beijing Municipal Development and Reform Commission has carried out pilot projects of the agent construction system in huilongguan hospital, vocational training and physical exercise centers for the disabled and centers for disease control and prevention, and achieved good results. On March 1 2004, Beijing Municipality promulgated the Administrative Measures of Beijing Municipal Government Investment Project Agent Construction System (Trial), which came into force as of the date of promulgation. It requires that the agent construction unit must be a legal person with corresponding qualifications and be able to independently undertake the performance responsibility.
In 2002, the relevant state departments organized the research on the topic of "the reform of management mode of government investment projects".
In the second half of 2003, Guizhou provincial government began to implement the "agent construction system" in the field of investment projects. The Construction Department of Guizhou Province drafted the Implementation Measures for the Agent Construction System of Guizhou Provincial Government Investment Projects, the Drafting Instructions for the Implementation Measures for the Agent Construction System of Guizhou Provincial Government Investment Projects, and the Agreement on the Agent Construction System of Guizhou Provincial Government Investment Projects (model text), and submitted them to the provincial government. The provincial government has approved the establishment of the "Guizhou Provincial Government Investment Project Construction Center".
At the end of 2003, the executive meeting of the State Council approved the investment system reform plan in principle, which stipulated that the "agent construction system" should be popularized nationwide. "For non-operating government investment projects, the agent construction system should be accelerated, that is, professional project management units should be selected to be responsible for the construction and implementation through bidding, and the project investment, quality and construction period should be strictly controlled and handed over to users after completion."
In 2004, Jiangsu focused on implementing 10 major social undertakings. The Development and Reform Commission of Jiangsu Province has formulated the Interim Provisions on the Agent Construction System for Government Investment Projects, and several major projects will be selected for pilot projects.
The current government of Zhejiang Province has put forward the goal of "ensuring the new construction of expressway 1 000 km and striving to build expressway 1 200 km", and at the same time completed the expressway construction goal of widening and transforming existing expressway, such as Shanghai-Hangzhou South, Hangzhou-Nanjing and Hangzhou-Jinjie. In order to successfully complete the construction goal, on the basis of extensive investigation, there is also the consideration of implementing the project agent construction system.
In addition, Shandong, Yunnan, Sichuan, Chongqing and other provinces and cities have also indicated or decided to implement the agent construction system in government investment projects.
On July 16, 2004, the State Council's "Decision on the Reform of Investment System" explicitly recognized the management mode of agent construction system with official documents.
1.2 agent construction model represented by Shanghai (Shanghai model for short)
As mentioned above, the agent construction system originated from government investment projects. In the process of implementing the agent construction system in Shanghai, the agent construction system has made new development. At the end of 200 1, Shanghai began to implement the agent construction system in the construction of expressway, and it was widely extended to other municipal projects. Shanghai Municipal Bureau issued the "Pilot Program on Construction Agent System (Project Construction Management) of Municipal Industry in this Municipality". Dalian Road Crossing Tunnel, North Ring expressway, Shanghai-Chongqing Elevated Phase II Project, Huqing Expressway (West Section) Project, Hulu Expressway, Jiading-Jinshan Expressway and other projects have all implemented the agent construction mode. In the mode of Shanghai agent construction system, the agent construction system is not limited to government investment projects, but extended to social investment infrastructure projects. For investors who have never been exposed to expressway construction and lack experience in expressway construction management, in order to control the project construction, the government decided to let the construction agent who is familiar with the laws and regulations of the construction market and proficient in project construction management help the owners manage the project construction. Moreover, there are more than 20 qualified agent construction units in Shanghai, most of which have become market-oriented professional units after being decoupled from relevant government departments, such as Huangpu River Bridge Construction Co., Ltd., Shanghai Municipal Engineering Construction and Development Co., Ltd. and Shanghai Construction Engineering Management Co., Ltd.
1.3 nature of agent construction system
Regarding the agent construction system, some people think that general contracting projects such as [PC] also belong to the agent construction system, which we think is inappropriate. The general contract of the project is a direct contractual relationship, while the agent system is an agency relationship from the concept and current national and local documents, that is, it exercises rights and obligations on behalf of Party A (the owner). We believe that in the Guiding Opinions on Cultivating and Developing Engineering General Contracting and Project Management Enterprises (Jianshi [2003] No.30) issued by the Ministry of Construction on February 3, 2003, the agent construction system should belong to project management. According to the provisions of this article, project management refers to an enterprise engaged in project management (hereinafter referred to as project management enterprise) entrusted by the owner to manage and serve the organization and implementation of the project on behalf of the owner in the whole process or in stages according to the contract. This is consistent with the agent construction system running in various places at present, so the agent construction system is a form of project management.
2. The legal framework design of the main contract documents of the agent construction system
There will be a large number of contracts for engineering construction. According to the nature and characteristics of the agent construction mode, the bidding documents of the agent and the management contract of the agent construction mode are the main contract documents unique to the agent construction mode, and special attention should be paid to the legal issues in its framework design.
2. 1 Agent Bidding Document-Construction Agent
Although the selection of construction agent is not the content that must be tendered by law, in order to select more experienced and powerful construction agent to complete the project construction and reduce risks and costs, bidding is widely used in the construction agent system. Regarding the qualification of agents, all local documents stipulate that agents should be legal persons with corresponding qualifications and be able to independently perform their responsibilities. For example, as stipulated in the Trial Measures for the Management of Social Undertakings by Xiamen Municipal Finance Investment and Financing, the units that can participate in the construction should have one of the qualifications of "first-and second-class real estate development, first-and second-class supervision, first-class engineering consulting, first-and first-class construction general contracting". On February 13, 2003, the Ministry of Construction issued "Guiding Opinions on Cultivating and Developing Engineering General Contracting and Project Management Enterprises", which also "encourages enterprises with engineering survey, design, construction and supervision qualifications to enrich project management professionals by establishing an organization and project management system suitable for engineering project management business, and carry out corresponding engineering management business within the scope of engineering projects permitted by their qualification levels in accordance with relevant qualification management regulations. In practice, it is generally required that the agent construction unit has the corresponding qualifications of engineering consultation, survey, design, construction and supervision. However, a general contracting enterprise cannot undertake both general contracting and agent construction business on the same project.
As the bid invitation letter of the bidder's substantial response, the bidding document of the agent shall clearly stipulate the rights and obligations of the project owner (Party A) and the agent (Party B), the collection and disbursement of the project construction management fee, the reward and punishment methods, etc. When designing the bidding documents, the tenderee should not pay attention to the principle of winning the bid with the lowest price, and should not think that the lower the agency fee is, the better. If the agency fee is very low, and there is no corresponding guarantee, insurance and other supporting measures, it is likely to transfer the agent's risk to the project management level.
2.2 On the agent management contract
1. Types of construction management contracts. According to the stage of the agent construction project, the agent construction management contract can be divided into preliminary work entrustment contract, construction implementation management contract and whole process agent construction management contract.
The preliminary work entrustment contract refers to the stage agency management of the feasibility study report, survey and preliminary design of the project according to the approved project proposal; Construction implementation management contract refers to the stage agency management of project construction drawing preparation, construction, supervision and completion acceptance by the successful construction implementation agency according to the approved preliminary design budget; The whole process construction management contract refers to the whole process construction management from the feasibility study report to the completion and acceptance of the project by the winning bidder.
2. The signing subject of the construction management contract. The main body of the general government investment project construction management contract is the project examination and approval department (such as Beijing Development and Reform Commission), users and the construction unit; Social investment projects are generally signed by investors and construction units. When signing the contract of agent construction management, we should fully consider the position and role of the agent in the design, construction and supervision contract. It is best for government departments (or investors), construction agents and contractors to sign engineering contracts for design, construction and supervision, which fully embodies the rights and obligations of all parties to the engineering contract.
3. The basic construction management contents that should be stipulated in the construction management contract. In the whole process of the construction management contract, the construction unit shall generally perform the following duties: (1) Organize the preparation of the project feasibility study report according to the contents approved in the project proposal; (2) Organize engineering investigation.
4. Calculate the management fee of the agent construction unit. According to the actual operation situation in various places, the management fee of the agent construction unit generally accounts for a certain proportion of the total construction management fee. For example, the general construction management fee is 3% of the total project investment, and the management fee of Xiamen agent construction unit can reach 100% of the construction management fee, which is 3% of the total project investment; Ningbo stipulates that the maximum can not exceed 90%, and Beijing stipulates that the maximum can be determined according to the ratio of 3: 7 of the total management fee.
5. Reward and punishment. The agent construction system can achieve good results in cost control, which can be said to be related to its reward and punishment incentive mechanism to some extent. In the implementation of the agent construction system in various places, it is generally stipulated that after the project is completed and accepted and passed the final financial accounts, if the final investment has savings compared with the investment agreed in the contract, the agent construction unit can participate in the sharing. For example, Beijing and Ningbo stipulate that about 30% of the government investment savings can be used as a reward for the agent construction unit. However, if the agent fails to perform the agent construction contract as agreed, it will also bear huge risk responsibility. As stipulated in Beijing, if the construction agent fails to fully perform the project construction contract, changes the construction content, expands the construction scale and improves the construction standards without authorization, resulting in prolonged construction period, increased investment, or unqualified project quality, all losses or increased investment shall be compensated from the bank performance guarantee of the construction agent; If the amount of performance bond is insufficient, the project construction management fee shall be deducted accordingly; If the project construction management fee is insufficient, it shall be paid by the construction unit with its own funds.
Problems and prevention of agent construction system
The agent construction system has gained some experience and achievements, but there are still some problems in the agent construction system itself, which should be paid attention to and prevented in actual operation.
3. 1 On the legal status of agents. Chen, the general manager of Beijing Shoujian Tendering Co., Ltd., who has been engaged in bidding on behalf of construction for many times, believes that in practice, agent construction has no legal status in the national capital construction procedures. Therefore, objectively, it can not be recognized by governments at all levels and construction-related management and filing departments, such as planning commission, construction commission, environmental protection, fire protection, quality inspection and so on. And encountered many difficulties in the actual operation process. Although some flexibility and handling methods are given in various aspects, in fact, users (that is, traditional construction parties) still need to go through various procedures. Therefore, it is necessary to further improve legislation and local regulations.
3.2 There is no lower limit and strict standard for the agent construction fee, which will easily lead to disorderly competition in the implementation of the agent construction system, and because there are no corresponding supporting measures such as guarantee and insurance, it is likely to transfer the risk of the agent construction unit to the project management level.
3.3 There are not many high-level agent construction units, and the implementation of agent construction projects may encounter the situation that the management of agent construction units is not in place.
The Investigation Report on the Agent Construction System in Xiamen Municipal Government Investment Projects by the Bidding Supervision Department of the Construction Market Management Department of the Ministry of Construction shows that both real estate development enterprises and supervision units have a certain professional level, but because project management is not their main business, there are certain limitations in project construction organization and management. First of all, the main business of these enterprises is only closely related to project management in one aspect, but they are not very good at other aspects of project management. For example, real estate development enterprises are familiar with the investment and organization of projects, but have relatively little understanding of the quality and safety management of specific projects; However, the supervision unit is familiar with the project quality and safety management, but not familiar with the pre-project organization. Secondly, as a sideline, will these enterprises attach importance to the development of project management? If they don't pay attention to project management as an important economic source of enterprises, they will not take the initiative to improve their business level in this area, and the level of project construction management will not be improved.
To solve this problem, in the long run, we must introduce and improve the project management system and actively cultivate project management companies; In a short period of time, enterprises with different aspects of project management experience may be required to form a construction management entity jointly, or
The agency management fee is high, and the agency with comprehensive and mature project management experience at home and abroad is sought.
refer to
[1] investigation report on the reform of organization and implementation mode of Xiamen municipal government investment projects [N]. China construction news, September 2003-1.
[2] Han Jie. Economic analysis of Shanghai agent construction system [N]. Traffic in China, August-19, 2003.
[3] Report on the Reform of Government-invested Construction Organizations in Xiamen [N]. china construction news, 2003-9- 1.
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