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(Promulgated on July 16, 1999 by Decree No.70 of the Shanghai
Municipal People' s Government. Revised according to the "Decision
of Shanghai
Municipal People' s Government on Revision of the 'Interim Procedures of Shanghai
Municipality on the Administration
of Construction Project Supervision' " on
August 1, 2003)
Chapter I General Provisions
Article 1 (Purpose and Basis)
These Procedures are formulated in
accordance with the "Building Law of the People' s Republic of China" and
the "Regulations of
Shanghai Municipality on the Administration of Building
Market" in order to ensure the quality of construction projects and raise
the
investment returns and management level of construction projects.
Article 2
(Definition)
The construction project supervision mentioned in these
Procedures refers to the supervision of the activity of construction projects
conducted by a construction project supervision unit (hereinafter referred to as
supervisory unit) entrusted by a project-owner-unit
within the scope as
stipulated in a supervision contract and according to laws and regulations, and
relevant technical standards
and contracts of contracting and contracting out
construction projects.
Article 3 (Application Scope)
These Procedures
apply to the supervision activity of construction projects and related
management activity thereof conducted in
the administrative area of this
Municipality.
Article 4 (Administrative Department)
The Shanghai Municipal
Construction and Administration Commission (hereinafter referred to as SMCAC) is
the competent administrative
department of construction project supervision of
this Municipality. The Shanghai Municipal Office for Administration of Building
Industry (hereinafter referred to as SMOABI) shall be in charge of the specific
administration of this Municipality' s construction
project supervision.
The
district/county construction administrative departments shall be in charge of
the administration of construction project supervision
within their respective
jurisdictional administrative areas according to their duties and
authorities.
Article 5 (Supervisors' Association)
The Shanghai Municipal
Construction Project Supervisors Association is a self-disciplinary organization
of construction project
supervision units, with the main tasks of offering its
member supervisory units education and supervision on professional discipline,
launching service training and exchanges, and protecting the legitimate rights
and interests of member supervisory units according
to law.
The SMCAC shall
provide guidance and supervision on the activities of the Shanghai Municipal
Construction Project Supervisors Association.
Article 6 (Principle of
Supervision)
In conducting activities of construction project supervision,
the principle of independence, objectiveness, openness, fairness and
impartiality shall be followed.
Article 7 (Encouragement of Scientific and
Technological Advancement)
This Municipality supports scientific and
technological research and talent training of construction project supervision,
and encourages
the adoption of high and new technologies and modern managerial
modes.
Article 8 (Supervision Insurance)
This Municipality advocates
supervisory units to insure against supervision liabilities.
Chapter II Supervisory Units and Supervisory Engineers
Article 9 (Supervisory Units' Practicing Permit)
A supervisory unit
established in this Municipality shall register with the industrial and
commercial administrative department
and obtain the qualification grade
certificate of supervisory unit issued by the State relevant department or the
SMCAC.
The establishment of a Sino-foreign jointly-invested or Sino-foreign
cooperative supervisory unit shall be reported to the municipal
foreign economic
and trade administrative department and the SMCAC for approval; the foreign
parties of Sino-foreign jointly-invested
or Sino-foreign cooperative supervisory
units shall be organizations of project management of building
activity.
Article 10 (Materials Required for Qualification
Application)
The applicant for supervisory unit qualification shall submit
the following documents to the SMCAC:
(1) Application form for
qualification;
(2) The name checked and ratified by the industrial and
commercial administrative department;
(3) The Articles of Association of the
unit;
(4) Documents that certify its registered capital and place of
business;
(5) Forms of information about supervisory engineers and other
supervision personnel.
The SMCAC shall provide free consultation for
qualification application.
Article 11 (Examination and Approval of
Qualification)
The qualification of supervisory unit is classified into Grade
A, B and C.
Grade-A qualification of supervisory units shall be reported to
the competent construction administrative department under the State
Council for
examination and approval after having been examined and approved by the SMCAC;
Grade B and C qualification of supervisory
units shall be examined and approved
by the SMCAC.
Requirements for examination and approval of supervisory
units' qualification shall be in accordance with relevant provisions of
the
competent construction administrative department under the State
Council.
Article 12 (Administration of Qualification Grades)
The
qualification of newly-established construction project supervision units shall
be of tentatively-fixed grade for two years
from the date of verification and
issuance of the certificate. The formal grade of qualification shall be
appraised and determined
after two years in the light of its qualification
conditions and performance of construction project supervision.
A supervisory
unit with its grade fixed may apply to the SMCAC for qualification upgrade after
three years from the grade-fixing
date, and the SMCAC shall make examination and
approval in the light of its qualification conditions, actual performance and
operational
behavior.
A supervisory unit shall perform supervision service of
construction projects within the scope limited by its qualification grade,
with
the exception of the case where a supervisory unit undertakes supervision
service of the next higher grade with approval from
the SMCAC after filing
application for qualification upgrade.
Article 13 (Permit for Out-of-town
Supervisory Units' Entering Shanghai)
Out-of-town supervisory units that
intend to enter Shanghai to undertake supervision service of construction
projects shall obtain
a permit for undertaking supervision service in Shanghai
(hereinafter referred to as permit for entering Shanghai)
The applicant for a
permit for entering Shanghai shall submit the following documents to the
SMCAC:
(1) Application form for undertaking supervision service in
Shanghai;
(2) Copy of the supervisory unit' s qualification grade certificate
issued by the competent construction administrative department
at or above the
provincial level;
(3) Copy of corporate business license:
(4) Supervision
service manual;
(5) Certificate issued by the competent construction
administrative department at or above the provincial level for undertaking
non-local supervision service;
(6) Forms of information about supervision
personnel entering Shanghai.
Article 14 (Permit for Project Management
Organizations from Hong Kong Special Administrative Region, Macao Special
Administrative
Region, Taiwan Region and Foreign Countries to Enter
Shanghai)
Organizations of project management of building activity from Hong
Kong Special Administrative Region, Macao Special Administrative
Region, Taiwan
Region and foreign countries shall obtain the permit for undertaking a single
item of supervision service with joint
approval from the municipal foreign
economic and trade administrative department and the SMCAC, and register with
the industrial
and commercial administrative department before conducting
supervision activity of construction project in this Municipality.
Article 15
(Time Limit for Examination and Approval)
The SMCAC shall make a decision in
writing within 30 days from the date of accepting the application for
supervisory unit' s qualification
grade and for the undertaking of supervision
service in Shanghai. In case of denial, explanations shall be given in writing
in
the decision.
Article 16 (Annual Examination and checking)
This
Municipality implements the system of annual examination and checking on
supervisory units.
A supervisory unit that fails to go through the annual
examination and checking after the expiry of the deadline, and still fails
to
apply within 30 days after receiving a reminder in writing from the SMOABI or
the district/county construction administrative
department, shall be construed
as its automatic suspension of business. The SMCAC shall announce the
cancellation of the qualification
grade certificate or the permit for entering
Shanghai of the said supervisory unit.
A supervisory unit that fails to pass
the annual examination and checking shall be ordered by the SMOABI to make
correction within
a time limit, and shall undertake service of a next lower
qualification grade, or reduce its service scope, during the correction
period.
A supervisory unit that fails to pass the annual examination and checking twice
in succession shall have its qualification
degraded by one grade, or have its
permit for entering Shanghai cancelled in a public notice by the SMCAC. The
supervisory unit
with the lowest qualification grade shall have its
qualification certificate cancelled in a public notice by the SMCAC.
Article
17 (Supervisory Engineer' s Practicing Certificate)
Anyone who engages in
corresponding supervision service of construction projects shall acquire a
supervisory engineer' s practicing
certificate.
To acquire a supervisory
engineer' s practicing certificate, the following requirements shall be
met:
(1) Having acquired a supervisory engineer' s qualification certificate
after passing the national or municipal uniform examination;
(2) Having more
than two years of supervision experience in a supervisory unit;
(3) Having
registered in accordance with relevant provisions of the State and this
Municipality.
The SMCAC shall stipulate the requirements of the examination
for this Municipality' s supervisory engineer' s qualification certificate.
Article 18 (Restriction on Registration)
A supervisory engineer applicant
who falls into any one of the following cases shall not be allowed to register;
if registration
has been made, the registration organ shall withdraw the
supervisory engineer' s practicing certificate, and announce the
cancellation:
(1) Having no or limited civil capacity;
(2) Less than three
years after being released upon completion of a term imprisonment or more severe
penalty sentence, with the
exception of negligent crime;
(3) Less than three
years after being punished by revocation of the supervisory engineer' s
practicing certificate;
(4) Less than three years after being given
administrative punishment for conducting supervisory activity arbitrarily in the
name
of registered supervisory engineer though not having made the
registration;
(5) Less than three years after being given administrative
punishment for major economic wrongful acts;
(6) Having provided false
materials for registration application;
(7) Other cases as may be stipulated
by the Municipal People' s Government.
Article 19 (Code of Conduct for
Supervisory Engineers)
A supervisory engineer shall work with a single
supervisory unit, and is not permitted to work with two or more than two
supervisory
units concurrently. A supervisory engineer is not permitted to
undertake supervision service in his or her own name.
Chapter III Norms of Supervision Service
Article 20 (Content of Supervision)
Construction project supervision is
divided into front-end construction stage, reconnaissance and design stage,
construction stage,
and guarantee repair service stage, with controlled content
such as engineering quality, time limit for a project and use of construction
funds included in each stage.
The supervision stage and controlled content of
construction project shall be stipulated in the contract by the
project-owner-unit
and the supervisory unit in line with the demand of
construction project supervision.
Article 21 (Construction projects subject
to supervisions)
Project-owner-units shall entrust supervisory units to
conduct supervision over the following construction projects:
(1) Key
construction projects of the State and this Municipality;
(2) Large and
medium-sized public utility projects;
(3) Projects of residential quarters
developed and constructed in stretches;
(4) Projects utilizing loans or aid
funds from foreign governments or international organizations;
(5) Other
projects subject to supervision as stipulated by the State and the Municipal
People' s Government.
The construction stage of construction projects in the
scope of the preceding clause must be under supervision. The scope of other
stages subject to supervision shall be stipulated by the SMCAC in line with the
development level of this Municipality' s supervision
technology.
Article 22
(Entrustment of Supervision)
Project-owner-units shall entrust supervisory
units with appropriate qualifications to conduct construction project
supervision.
A supervisory unit shall undertake construction project
supervision service compatible with its ability to assume economic liability.
The specific procedures shall be separately provided by the SMCAC.
For
supervision service of construction projects, a supervisory unit may be chosen
through public bidding. But for the construction
project subject to public
bidding for supervision service according to law, the project-owner-units shall
select a supervisory
unit through public bidding.
Under equal conditions, the
supervisory unit that has insured against supervision liability shall enjoy the
priority in winning
the bid in the public bidding for construction project
supervision. The bids evaluation proposal for construction project supervision
shall manifest the content that the supervisory unit that has insured against
supervision liability shall enjoy the priority in
winning the bid in the public
bidding.
Article 23 (Contract of Supervision)
The project-owner-unit shall
sign a contract of entrusted supervision of construction project (hereinafter
referred to as supervision
contract) with the entrusted supervisory unit.
The
supervision contract shall be signed by reference to the demonstrative text of
supervision contract set by the State or this
Municipality.
Article 24
(Implementation of Supervision)
Construction project supervision shall
proceed according to the following provisions:
(1) Work out a construction
project supervision program;
(2) Draw up detailed rules on construction
project supervision in the light of the different specialties according to the
progress
of construction;
(3) Implement the supervision according to the
detailed rules on construction project supervision;
(4) Implement supervision
according to the set operational procedure and form;
(5) Produce a written
evaluation report of construction project supervision;
(6) Submit files of
construction project supervision to the project-owner-unit upon completion of
supervision tasks.
Article 25 (Supervisory Organization)
The supervisory
unit shall appoint appropriate supervisors at construction sites as stipulated
in the supervision contract and according
to the project scale and
complexity.
The system of job responsibility of chief supervisory engineer is
practiced for construction project supervision. The chief supervisory
engineer
shall exercise the competence authorized by the supervision contract, and be in
full charge of the entrusted supervision
work.
The position of chief
supervisory engineer shall be held by the supervisory engineer designated by the
supervisory unit.
In absence from the construction sites of the project, the
chief supervisory engineer shall appoint a field representative to exercise
the
duty and power on behalf of the chief supervisory engineer.
Article 26
(Supervision Coordination)
In respect of the construction project under
entrusted supervision, the project-owner-unit shall, prior to the implementation
of
construction project supervision, notify in writing the unit that undertakes
the construction project, of the supervisory unit,
supervision content and
extent of authority, and the forms of information about supervisory
personnel.
The unit that undertakes the construction project shall provide
the supervisory unit with original records, test records and other
materials
needed for supervision.
Article 27 (To give Instructions)
Within the
limits of supervision contract, the project-owner-unit shall give instructions
relating to the project in writing to
the unit that undertakes the construction
project through the chief supervisory engineer or his or her designated field
representative.
The unit that undertakes the construction project shall reply
within the rational time limit to the project-related questions raised
by the
chief supervisory engineer or his or her designated field
representative.
Article 28 (Supervisory Unit' s Rights at the Construction
Site of Project)
The supervisory unit shall have the following rights at the
construction site of project:
(1) To report to the project-owner-unit,
requesting for correction in case of that the construction project design is
incompatible
with the quality standard of construction project or the quality
requirement stipulated in the contract of contracting or contracting
out the
construction project;
(2) To request the construction unit for correction in
case of that the construction work of project is incompatible with the design
requirement, technical standard of construction work and stipulations in the
contract of contracting and contracting out the construction
project, or in case
of possible hidden peril of project quality and safety;
(3) To forbid the
use or installation of building materials, structural components and equipment
affecting the quality and safety
of project principal structure unless approved
with signature; to request the construction unit to stop using other building
materials,
structural components and equipment of substandard quality;
(4) To
undergo acceptance test of hidden projects;
(5) To suggest the replacement of
the unqualified unit that undertakes the construction project, the person in
charge of the project
or related personnel;
(6) To suggest the replacement of
the unqualified person in charge of the project of the project-owner-unit and to
have the right
to report to the competent department concerned.
Article 29
(Supervisory Unit' s Civil Liabilities)
The supervisory unit shall bear
responsibility for keeping confidential the materials and documents provided by
the project-owner-unit
or the unit that undertakes the construction
project.
The supervisory unit shall be held liable to make appropriate
compensation for losses caused to the project-owner-unit due to failure
to
perform the supervision duty or due to the wrong instructions of the supervisory
unit.
The supervisory unit shall be held liable jointly with the unit that
undertakes the construction project to make compensation for
losses caused to
the project-owner-unit due to collusion between the supervisory unit and the
unit that undertakes the construction
project.
Article 30 (Supervision
Entrustment by Foreign unit)
When implementing supervision of construction
projects with sole foreign investment and with overseas donations or loans, the
organizations
of project management of building activity from Hong Kong Special
Administrative Region, Macao Special Administrative Region, Taiwan
Region, or
foreign countries shall conduct supervision in cooperation with domestic
supervisory units. To conduct cooperative supervision,
approval from the SMOABI
shall be obtained.
Sino-foreign jointly-invested and Sino-foreign cooperative
construction projects shall be supervised by domestically-established
supervisory units, unless otherwise stipulated by laws and
regulations.
Article 31 (Sub-Entrustment of Specialized Supervision)
With
the consent of the project-owner-unit, the supervisory unit may sub-entrust part
of specialized supervision services to other
specialized supervisory units. In
case of supervision sub-entrusted to a specialized supervisory unit, the chief
supervisory engineer
shall be the supervisory unit that is entrusted by the
project-owner-unit.
Article 32 (Supervision Fee)
The standard rate of
construction project supervision fee or the payment mode shall be by reference
to relevant stipulations set
by the State and this Municipality.
The
supervision fee shall be included in the budgetary estimate of the construction
project.
Article 33 (Prohibitive Acts of Supervisory Unit)
The
supervisory unit shall not do the following acts:
(1) Engage in supervision
service of construction project beyond the permitted scope of qualification or
the permitted scope to
undertake supervision service in Shanghai;
(2) Act in
collusion with the contractor unit of the construction project under
supervision, practicing fraud and lowering the quality
standard of the
construction project;
(3) Transfer the supervision service of construction
project;
(4) Accept the supervision entrustment of the project-owner-unit
while having relationships of affiliation, operational business
or other
interests with the contractor unit of the construction project or the supplier
unit of building materials, structural
components and equipment.
Chapter IV Legal Liability
Article 34 (Administrative Punishment)
Anyone who does any one of the
following acts in violation of the provisions shall be ordered by the SMOABI or
the district/county
construction administrative department to make correction,
or to make correction within a time limit, and shall be penalized according
to
the following provisions:
(1) A supervisory engineer who concurrently works
in two or more than two supervisory units, or undertakes supervisory service of
construction project in his or her own name shall be given a warning and may be
cumulatively penalized with a fine of between not
less than 5000 yuan and not
more than 30000 yuan;
(2) A domestic supervisory unit that without approval,
conducts supervision in cooperation with organizations of project management
of
building activity from Hong Kong Special Administrative Region, Macao Special
Administrative Region, Taiwan Region or foreign
countries shall be given a
warning and may be cumulatively penalized with a fine of between not less than
5000 yuan and not more
than 30000 yuan.
Anyone who does any one of the
following acts in violation of the provisions of these Procedures shall be
penalized by the SMOABI
or the district/county construction administrative
department in accordance with the provisions of the "Building Law of the People'
s
Republic of China," the "Public Bidding Law of the People' s Republic of
China," the "Regulations on Administration of Construction
Project Quality" and
the "Regulations of Shanghai Municipality on Administration of Building
Market" :
(1) Conducting supervision service of construction projects or
corresponding services in this Municipality without acquiring a qualification
certificate, a permit or a supervisory engineer' s practicing qualification
certificate;
(2) A supervisory unit that undertakes supervision service of
construction projects beyond its qualification grade and its business
scope,
transfers supervision service, or colludes with the contractor unit of the
construction project under supervision, practises
fraud, lowers the quality
standard of construction project, or accepts supervision entrustment of the
project-owner-unit, while
having relationships of affiliation, operational
business or other interests with the contractor unit of the construction
project,
or with the supplier unit of building materials, structural components
and equipment;
(3) Failure to entrust the supervision of a construction
project that is subject to supervision;
(4) The project-owner-unit entrusts
the supervision service of a construction project to a project supervision unit
that does not
have the corresponding qualification grade;
(5) For a
construction project that should conduct public bidding for supervision service
according to law, the project-owner-unit
fails to select a supervisory unit
through public bidding.
Article 35 (Investigation of Law-enforcer' s Wrongful
Acts)
The staff members of construction administrative departments shall
observe discipline and abide by laws, and be level-handed in enforcing
law.
Those who neglect their duties, abuse powers, engage in malpractice for selfish
ends, extort or take bribes, or bend the law
in enforcement shall be given
disciplinary sanctions by the unit where they work or by the higher-level
competent department; if
the wrongful act constitutes a crime, the wrongdoer
shall be prosecuted for criminal liability as provided by law.
Article 36
(Reconsideration and Litigation)
The party concerned, if disagreeing with the
specific administrative act made by the construction administrative department,
may
apply for administrative reconsideration or bring an administrative lawsuit
according to the "Law of the People' s Republic of China
on Administrative
Reconsideration" and the "Administrative Litigation Law of the People' s Republic
of China" .
Where the party concerned does not apply for administrative
reconsideration, nor brings an administrative lawsuit, nor performs the
specific
administrative act within the prescribed time period, the department that has
made the specific administrative act may
apply to the people' s court for
enforcement according to the "Administrative Litigation Law of the People' s
Republic of China"
.
Chapter V Supplementary Provisions
Article 37 (Interpretation in Application)
The SMCAC may interpret these
Procedures in their specific application.
Article 38 (Effective
Date)
These Procedures shall become effective on October 1,
1999.
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