Laws of the Shanghai Province
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Interim Procedures of Shanghai Municipality on the Administration of Construction Works Supervision
|(Promulgated by Decree No. 70 of the Shanghai Municipal
People' s Government on July 16, 1999)
Chapter I General Provisions
Article 1 Purpose and Basis
These Procedures are formulated in accordance with the Construction Law of the People' s Republic of China and the Regulations of Shanghai Municipality on the Administration of Construction Market in order to ensure the quality of construction works, and enhance the investment benefit and administration level of construction works.
Article 2 Connotation
The term Construction Works Supervision used in these Procedures refers to the supervision, as entrusted by the project-owner-unit, performed by the construction works supervisory unit (hereinafter referred to as supervisory unit) on the construction activities of construction works pursuant to the scope agreed upon in the supervision service contract according to laws, rules and regulations and contracts of construction works.
Article 3 Scope of Application
These Procedures are applicable to the construction works supervision activities and related administration activities within the administrative region of this Municipality.
Article 4 Administrative Department
Shanghai Municipal Construction Commission (hereinafter referred to as the SMCC) is the competent department in charge of the construction works supervision of this Municipality. Shanghai Municipal Construction Industry Administrative SMCIAO (hereinafter referred to as SMCIAO) shall be in charge of the specific administration of the municipal construction works supervision activities
The district / county construction administrative department shall, according to its respective duty and authority, be in charge of the construction works supervision activities within its jurisdiction.
Article 5 Supervisors' Association
Shanghai Municipal Construction Works Supervisor' s Association is the self-disciplinary organization for construction works supervisory units. Its main tasks are professional disciplinary education and supervision to its member supervisory units, hold business training and exchange activities and protection of the legitimate rights and interests of member supervisory units.
The SMCC shall provide guidance and supervision on the activities of Shanghai Municipal Construction Works Supervisor' s Association.
Article 6 Supervision Principles
The principles of independence, objectiveness, openness, fairness and impartiality shall be followed in carrying out construction works supervisory activities.
Article 7 Encouragement of the Progress in Science and Technology
This Municipality supports the scientific and technological research and training of talents of construction works supervision and encourages using high-tech and modern management modes.
Article 8 Supervision Insurance
This Municipality advocates the supervisory units to insure against supervision liabilities.
Chapter II Supervisory Units and Supervisory Engineers
Article 9 Supervisory Unit' s Practice License
The supervisory units established in this Municipality shall be licensed by the Industrial and Commercial Administrative Department, and be certified by the relevant department of the State, or the SMCC on the qualification grade of supervisory unit.
To establish a Sino-foreign jointly invested supervisory unit or Sino-foreign cooperative
supervisory unit, the application shall be submitted to the municipal foreign economic and trade administrative department and the SMCC for approval. The foreign partner of sino-foreign jointly invested supervisory unit or Sino-foreign cooperative supervisory unit shall be an organization that undertakes project management of construction activities.
Article 10 Materials Required for Qualification Application
The following documents shall be submitted to the SMCC when applying for supervisory unit qualification:
1. Application for qualification;
2. The name verified by the Industrial and Commercial Administrative Department;
3. The Articles of Association;
4. A document that certifies registered capital and business SMCIAO;
5. Resumes of supervisory engineers and other supervisory personnel.
The SMCC shall provide information on qualification application free of charge.
Article 11 Qualification Review
The qualifications of supervisory units shall be classified into Grade A, Grade B and Grade C.
Grade A supervisory unit applicant shall be approved by the competent construction administrative department of the State Council after examined and verified by the SMCC; Grades B and C supervisory unit applicants shall be approved by the SMCC.
Requirements shall be met according to the relevant rules and regulations set by the competent construction administrative department of the State Council in approving supervisory unit qualifications.
Article 12 Administration of Qualification Grades
The qualification grade of a newly established construction works supervisory unit shall be only a tentative grade for 2 years from the date of issuance of the qualification grade certificate. When these 2 years have elapsed the formal qualification shall be appraised and decided in accordance with the conditions of the qualification and achievement in construction works supervision.
A supervisory unit with fixed grade may apply after 3 years from the date of fixing of the grade to the SMCC for an upgrading of qualification, and the SMCC shall examine and approve according to its conditions of qualification, its actual achievements, and its operational behaviors.
The supervisory unit shall only undertake the construction works supervision service within the scope limited by the qualification grade, with the exception of a supervisory unit, that has applied for a qualification upgrade and that has been approved by the SMCC, to take on supervision business within the scope of that approved higher qualification grade.
Article 13 Permit to Enter Shanghai for Supervisory Units from Other Provinces
Supervisory units from other provinces that undertake construction works supervision business in Shanghai shall obtain the permit to take on supervision business in Shanghai (hereinafter referred to as the Permit to Enter Shanghai).
The following materials shall be submitted to the SMCC when applying for the Permit to Enter Shanghai:
1. Application for undertaking supervision business in Shanghai;
2.Copy of the supervisory unit qualification grade certificate issued by the construction administrative department of the provincial level; or a level;
3. Copy of corporate business license;
4. Supervision business manual;
5.Certificate issued by the construction administrative department of the provincial level or a higher level to operate the business outside;
6. Resumes of supervisory personnel entering Shanghai.
Article 14 Permit to Enter Shanghai for Project Management Institutes from Hong Kong
Special Administrative Region, Macao, Taiwan Regions and Foreign Countries
Project Management Institutes from Hong Kong Special Administrative Region, Macao, Taiwan Regions and foreign countries that are engaged in construction activities shall obtain the approval from the administrative department of the Municipal Foreign Economic and Trade together with the SMCC and permit to undertake single supervision business and shall register at the industrial and commercial administrative department before such institutes start the construction works supervision activities.
Article 15 Time Limit for Examination and Approval
The SMCC shall make a decision in writing within 30 days after the receipt of application for supervision Qualification or for permit to undertake supervision business in Shanghai. The SMCC shall account for a written decision of disapproval.
Article 16 Annual Examination and Checking
This Municipality shall implements an annual review and examination system on supervision units.
If a supervisory unit fails to attend to annual examination and checking after the deadline, and still fails to apply within 30 days after receipt of a written reminder from the SMCIAO or district / county construction administrative department, this supervisory unit shall be regarded as automatic close of business. The SMCC shall announce the cancellation of its supervision qualification grade certificate or the permit to undertake supervision business in Shanghai.
If a supervisory unit fails to pass the annual examination and checking, the SMCC shall order such unit to correct within a time limit, and such unit shall be engaged during this period of correction in the business scope stipulated for a lower supervision qualification grade or reduce its business scope. If a unit fails to pass the annual examination and checking for consecutive 2 years, the SMCC shall degrade its qualification by one grade, or announce the cancellation of the permit to enter Shanghai. In case a unit' s qualification grade is degraded to the lowest one, its supervisory unit grade certificate shall be announced or cancelled by the SMCC.
Article 17 Supervisory Engineer' s Certificate of Practice
The supervisory engineer' s certificate of practice shall be obtained for undertaking relevant construction supervision business in Shanghai.
To obtain the supervisory engineer' s certificate of practice, the following requirements shall be met:
1. Having acquired a supervisory engineer qualification certificate after passing the state or the municipal uniform examination;
2. Having more than 2 years of supervision experience in a supervisory unit;
3. Having registered in accordance with the relevant rules and regulations of the state and this Municipal;
The SMCC shall stipulate the requirements for the examination of supervisory engineer' s qualification certificate of this Municipality.
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 the certificate is issued, the registration organ shall withdraw his or her supervisory engineer' s certificate of practice and announce the cancellation:
1. Having no or limited civil capacity;
2. Having been sentenced to a set term of imprisonment or more severe punishment, and released after the expiration of imprisonment for not more than 3 years, with the exception of unpremeditated crime;
3. Having received the cancellation of the supervisory engineer' s certificate of practice within last 3 years;
4. Being given disciplinary penalty within 3 years on unauthorized engagement in supervision activities under the name of certified supervisory engineer;
5. Being given disciplinary penalty within 3 years on economic behaviors of serious violation of laws;
6. Having provided false registration and application material;
7. Other situations stipulated by the Municipal People' s Government.
Article 19 Code of Conduct for Supervisory Engineer
A supervisory engineer shall work with one supervisory unit only; he / she shall not work with 2 or more than 2 supervisory units and shall not undertake construction works supervision business in his / her personal name.
Chapter III Supervision Business Standards
Article 20 Content of Supervision
Construction works supervision shall be divided into construction preliminary period, reconnaissance and design period, construction period, and guaranteed after service period. Engineering quality, schedule of works, construction fund utilization, etc. shall be controlled in each period.
Construction works supervision period and control content shall be stipulated in the contract between the project-owner-unit and the supervisory unit according to the supervision requirement of the construction works.
Article 21 Construction Works That Need to Be Supervised
For the following works, the project-owner-unit shall entrust a supervisory unit to supervise them:
1. Key construction works of the state and this Municipality;
2. Public welfare works of large and medium sizes;
3. Residential works;
4. Works that utilize donation or loan from foreign government or international financial institutions;
5. Other works stipulated by the Municipal People' s Government.
The construction period of the above mentioned construction works must be supervised. The supervision scope of other periods needed to be supervised shall be set by the SMCC according to the level of the development of supervision technology of this Municipality
Article 22 Supervision Entrustment
The project-owner-unit shall entrust a supervisory unit of appropriate qualifications to conduct the construction works supervision.
The construction works supervision business undertaken by the supervisory unit shall correspond with the economic responsibility capacity that can be assumed by that supervisory unit. The SMCC shall formulate the specific procedures.
In entrusting construction works supervision business, the supervisory unit may be selected by bidding. As to the construction works that need to be supervised, the project-owner-unit shall select the supervisory unit by bidding.
With the same factors, the supervisory unit that has insured against supervision liability shall enjoy the priority in the award of contract. The bid evaluation proposal on the construction works supervision shall stipulate that the supervisory unit that has insured against supervision liability shall enjoy the priority in the award of contract.
Article 23 Supervision Contract
The project-owner-unit shall sign a construction works supervision contract hereinafter called the Supervision Contract with the entrusted supervisory unit.
Reference can be made to the Model Supervision Contract of the state or this Municipality in making the Supervision Contract.
Article 24 Supervision Implementation
The construction works supervision shall proceed according to the following stipulations:
1. Work out a construction works supervision program;
2. Draw up detailed rules and regulations on construction works supervision in the light of the different specialities according to the progress of works;
3. Supervise according to the detailed rules and regulations on construction works supervision;
4. Supervise according to the stipulated operational procedures and forms;
5.Produce written supervision evaluation report on the construction works;
6. Submit supervision files and materials to the project-owner-unit after the completion of the supervision task.
Article 25 Supervisory Organization
The supervisory unit shall appoint appropriate supervision personnel to the construction site as stipulated in the Supervision Contract, and according to the scale of the works and the degree of complexity.
The chief supervisory engineer responsibility system shall be implemented in construction works supervision. The chief supervisory engineer shall exercise the authority vested in him / her in the Supervision Contract, and have full charge of the supervision work entrusted.
The position of the chief supervisory engineer shall be held by the supervisory engineer designated by the supervisory unit.
If the chief supervisory engineer leaves the construction site of the construction works, he / she shall appoint a field representative to exercise the authority of the chief supervisory engineer.
Article 26 Supervision Coordination
In respect of the construction works project entrusted to be supervised, the project-owner-unit shall notify the unit that undertakes the construction project in writing of the supervisory unit, the supervision scope, the supervision authorization and particulars of supervision personnel before the implementation of the construction works supervision.
The unit that undertakes the construction project shall submit to the supervisory unit materials needed for supervision, such as the original record, the record of examinations and tests, and related information.
Article 27 To Give Instructions
All instructions of the project-owner-unit on the works to the unit that undertakes the construction project that are within the supervision scope stipulated in the Supervision Contract shall be given in writing through the chief supervisory engineer or the field representative appointed by him/her. The unit that undertakes the construction project shall respond to the questions on the works raised by the chief supervisory engineer or the field representative appointed by him/her in a reasonable time limit.
Article 28 Supervisory Unit' s Rights at the Construction Site
The construction unit shall have the following rights at the construction site:
1. To report to the project-owner-unit and demand that the designing unit make rectification, if the design for the construction works does not conform to the quality standards for construction works or the quality requirements stipulated in the contract of the construction works;
2. To demand the unit that undertakes the construction project to correct, if the construction of the works does not conform to the design requirements, construction technology standards and the terms and conditions in the contract of the construction works, or the construction may cause latent defects in the quality and safety of the works;
3. To demand the unit that undertakes the construction project to stop using or installing the construction materials, components and fittings, and equipment that affect the quality and safety of the main structure of the works and that have not been approved by signature;
4. To examine and accept the hidden works;
5. To suggest the replacement of the unqualified unit that undertakes the construction project, the unqualified person in charge of the project or relevant personnel;
6. To suggest the replacement of the unqualified person in charge of the project-owner-unit and have the right to report the matters to the competent authority.
Article 29 Civil Liabilities of the Supervisory Unit
The supervisory unit shall be held liable to keep 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 compensate the project-owner-unit the corresponding loss arising from the supervisory unit' s failure to fulfill the supervision duties, or the loss arising from its wrong instructions.
The supervisory unit and the unit that undertakes the construction project shall be held jointly liable for the loss to the project-owner-unit arising from the collaboration of the supervisory unit with the unit that undertakes the construction project.
Article 30 Supervision Entrusted by Foreign Unit
The project management institute from Hong Kong Special Administrative Region, Macao, Taiwan regions or a foreign country, that supervises the construction works funded by the donation or loan from foreign solely owned enterprise or a foreign country, shall cooperate with the local supervisory unit. The cooperative supervision shall be approved by the SMCIAO.
The construction works of Sino-foreign joint or cooperative venture shall be supervised by the local established supervisory unit with the exceptions that if the laws otherwise stipulate it, rules and regulations.
Article 31 Subcontract Specialized Supervision
With the consent of the project-owner-unit, the supervisory unit may subcontract part of the specialized supervision business with supervisory unit of other profession. In case of subcontracting supervisory unit of other profession, the chief supervisory engineer shall be held by the supervisory unit entrusted by the project-owner-unit.
Article 32 Supervision Fee
The standard rate of the construction supervision fee or mode of payment may be executed with reference to the relevant rules and regulations of the state and this Municipality.
The supervision fee shall be included in the budget of the construction works.
Article 33 Forbidden Behaviors of the Supervisory Unit
The supervisory unit shall not have the following behaviors:
1. To engage in the supervision business of construction works beyond the permitted qualification scope or the permitted scope to undertake supervision business in Shanghai;
2. To collude with the unit that undertakes the construction project being supervised in conspiracy, trickery and degradation of quality standard of the construction works;
3. To assign the supervision business of the construction works;
4. To supervise the unit that undertakes the construction project or suppliers of the construction materials, components and fittings, and equipment that is in relationship of affiliation, operational service, or other interest with the supervisory unit itself.
Chapter IV Legal Liability
Article 34 Administrative Sanction
Any one who violates the provisions of these Procedures with one of the following acts shall be ordered by the SMCIAO or the district / county construction administrative department to make correction or correction within a time limit, and shall be penalized according to the following provisions:
1. If a supervisory engineer works in two or more than two supervisory units, or undertake supervision business of construction works in his / her personal name, he or she shall be given a warning, and a fine of 5,000 yuan to 30,000 yuan inclusive may be imposed;
2. If the project-owner-unit fails to entrust the supervision business to a qualified supervisory unit, it shall be given a warning, and a fine of 10% to 20% of the Supervision Contract value may be imposed, but the maximum penalty shall not exceed 30,000 yuan;
3. If the project-owner-unit does not select the supervisory unit on a construction works that shall be supervised by bidding, the project-owner-unit shall be given a warning, and a fine of 10% to 20% of the Supervision Contract value may be imposed, but the maximum penalty shall not exceed 30,000 yuan;
4. If the domestic supervisory unit cooperates, without authorization, with the project management institute of construction activities from Hong Kong Special Administrative Region, Macao Taiwan regions or a foreign country, the domestic supervisory unit shall be given a warning, and a fine of 5,000 yuan to 30,000 yuan may be imposed.
Any one who violates the provisions of these Procedures with one of the following acts shall be penalized by the SMCIAO or district / country Construction administrative department according to the Construction Law of the People' s Republic of China and the Administrative Regulations of Shanghai Municipality on the Administration of Construction Market.
1. To undertake the supervision business of construction works in this Municipality or related business without having acquired qualification certificate, permit, or supervisory engineer' s certificate of practice;
2. A supervisory unit undertakes the supervision business beyond its qualification grade and business scope, assign the supervision business or collude with the unit that undertakes the construction project under supervision, resort to trickery, lower the construction works quality standards or supervise the unit that undertakes the construction project or suppliers of the construction materials, components fittings and equipment that are in relationship of affiliation, operational service or other interest with the supervisory unit itself;
3. A construction works that shall be supervised but fails to entrust the supervision.
Article 35 Investigation of Law Enforcers' Unlawful Practice
The staff at the construction administrative departments shall observe disciplines, abide by laws, and act with justice. Those who neglect their duties, abuse their power, act wrongly for selfish ends, seek or take bribes, or violate laws shall be given disciplinary sanctions by the unit or the competent department at higher level. Those whose act constitutes a crime shall be prosecuted for criminal liabilities.
Article 36 Review and Litigation
The party concerned, who does not accept the specific administrative acts of the Construction Administrative Department, may apply for an administrative review or bring an administrative action according to the Regulations on Administrative Review or the Administrative Litigation Law of the People' s Republic of China.
In case the party concerned does not apply for a reconsideration nor bring an administrative action within the legal time limit; nor does it fulfill the specific administrative acts; the department that has done the specific administrative acts apply to the People' s Court for compulsory enforcement in accordance with the Administrative Litigation Law of the People' s Republic of China.
Chapter V Supplementary Provisions
Article 37 Interpretation in Application
The Municipal Construction SMCC may have the right to interpret in specific application of these Procedures.
Article 38 Date of Implementation
These Procedures shall become effective on October 1, 1999.