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TABLE OF CONTENTS CHAPTER I REQUIREMENTS OF FOREIGN-FUNDED CONSTRUCTION ENTERPRISE FOR QUALIFICATION CERTIFICATE CHAPTER II SCOPE OF CONSTRUCTION ACTIVITIES ENGAGED CHAPTER III RATIFICATION OF THE QUALIFICATION CHAPTER IV CONDITIONS FOR PROVIDING FOREIGN SERVICE CHAPTER V RECOGNITION OF THE ACHIEVEMENTS IN CONTRACTED PROJECTS CHAPTER VI SCOPE OF THE PROJECTS CONTRACTED CHAPTER VII TIME FOR ACCEPTANCE OF THE QUALIFICATION APPLICATIONS CHAPTER VIII RELATION BETWEEN THE PROVISIONS AND THE FORMER ORDER NO.32 OF THE MINISTRY OF CONSTRUCTION These Implementation Measures are enacted for the purpose of implementing the Provisions on the Administration of Foreign Funded Construction Enterprises (Order No.113 of the Ministry of Construction and the Ministry of Foreign Trade and Economic Cooperation) (hereinafter referred to Provisions). CHAPTER I REQUIREMENTS OF FOREIGN-FUNDED CONSTRUCTION ENTERPRISE FOR QUALIFICATION CERTIFICATE The qualification certificate of foreign-funded construction enterprise is issued to the following foreign-funded construction enterprises qualified as Chinese business corporations: (1) Any construction enterprise of which all the capital is invested by foreign investors; (2) Any construction enterprise established by foreign investors and Chinese investors through joint equity or cooperation; (c) Any construction enterprise newly established within China through reinvestment, or resulted from purchase of the equity of investors any other construction enterprise, by a foreign-funded enterprise, which has been established within China according to law, in its own name. The qualification certificate of construction enterprise will not be issued to foreign enterprises and the branches set up within China by foreign enterprises and other economic organizations. CHAPTER II SCOPE OF CONSTRUCTION ACTIVITIES ENGAGED The construction activities mentioned in Article 3 of the Provisions refer to the new construction, expansion and rebuilding of civil engineering projects, construction projects, pipeline equipment installation projects, and fitment projects. within China in accordance with the Construction Law of the People's Republic of China and the Regulations on the Quality Administration of Construction Projects. CHAPTER III RATIFICATION OF THE QUALIFICATION A foreign-funded construction enterprise shall apply for the qualification of construction enterprise according to: Provisions on the Administration of Foreign-funded Construction Enterprises (Order No.113 of the Ministry of Construction and the Ministry of Foreign Trade and Economic Cooperation), Provisions on the Qualification Administration of Construction Enterprises (Order No.87 of the Ministry of Construction), Opinions on the Implementation of the Provisions on the Qualification Administration of Construction Enterprises (Docket No.24 [2001] of the Ministry of Construction), Standards for the Qualification Grades of Construction Enterprises (Docket No.82 of the Ministry of Construction), and the regulations and regulatory documents on the qualification administration of construction enterprises: (1) With respect to a newly established foreign-funded construction enterprise, its qualification grade shall be ratified as the lowest one, and one-year period of temporary ratification shall be fixed; (2) With respect to a foreign-funded construction enterprise newly established by a foreign enterprise that has contracted projects within China, if it meets the following conditions, besides the conditions provided for by the qualification standards for construction enterprises, may directly apply for the second grade or above qualification of construction enterprise: 1. According to the Provisional Measures for the Qualification Administration of Foreign Enterprises Contracting Projects within China (Order No.32 of the Ministry of Construction), the enterprise has obtained the qualification certificate of foreign enterprise or the certificate of approval for contracting projects issued by the Ministry of Construction, the administrative department in charge of construction at the provincial level, or the administrative department in charge of construction of the special economic zone or open coastal city prior to September 30, 2003; and 2. In case of application for qualification of foreign-funded construction enterprise, the achievements made in the contracted projects within China by the foreign enterprise meet the contracted project achievement standard required for applying for the qualification of construction enterprise; in the case of application for the qualification of Chinese-foreign equity joint or Chinese-foreign cooperative joint construction enterprise, the total achievements of those made in the contracted projects within China by the foreign enterprise and those made in the contracted projects by the Chinese party shall meet the contracted project achievement standard required for applying for the qualification of construction enterprise; (3) Where a foreign enterprise purchases the equity of a domestic-funded construction enterprise, and the latter is altered to be a Chinese-foreign equity joint or Chinese-foreign cooperative joint construction enterprise, the qualification of that enterprise shall be ratified anew according to the standard it actually meets; (4) Where a foreign enterprise purchases a domestic-funded construction enterprise, and the enterprise is restructured into a foreign-funded construction enterprise, the qualification of that enterprise shall be ratified anew according to the standard it actually meets; (5) Before the implementation of the Provisions, where a established Chinese-foreign equity joint or Chinese-foreign cooperative joint construction enterprise failed to, by reason of the registered capital, meet the requirements of the former Several Provisions on the Establishment of Foreign-funded Construction Enterprise (Docket No.533 of the Ministry of Construction) jointly promulgated by the Ministry of Construction and the Ministry of Foreign Trade and Economic Cooperation, that enterprise may apply for the qualification of construction enterprise of the corresponding grade after implementation of the Provisions; CHAPTER IV CONDITIONS FOR PROVIDING FOREIGN SERVICE Where a foreign-funded construction enterprise employs any foreign service provider as its technical or managerial personnel, it shall present the labor contract signed according to law in the application for enterprise qualification: (1) Where a foreign-funded construction enterprise employs any foreign service provider as its manager, that person shall have work experience in project management required by the qualification standards for construction enterprises, and shall provide the corresponding certifications; (2) Where a foreign-funded construction enterprise employs any foreign service provider as its technical or managerial personnel, that person shall meet the conditions equal to the requirements on technical title provided for by the qualification standards for construction enterprises; (3) Where a foreign-funded construction enterprise employs any foreign service provider as its technical or managerial personnel, if that person has the university graduate or higher degree, and has work experience of more than 10 years in the corresponding work, the person may be reported as having the senior technical title in the enterprise's application for qualification; if that person has the college or above degree and has work experience of more than 5 years in the corresponding work, the person may be reported as having the middle-level technical title in the enterprise's application for qualification; (4) Where a foreign-funded construction enterprise employs any foreign service provider as its project manager, if that person meets the following conditions and can provide the relevant certifications, he/she may be recognized by the department of qualification administration as having the qualification of project manager of the corresponding grade in the enterprise's application for qualification: 1. Where the foreign service provider is reported as first-grade project manager, that person shall have been the major principal of construction of an engineering project required by the qualification standards for first-grade construction enterprises, or of two engineering projects required by the qualification standards for second-grade construction enterprises; 2. Where the foreign service provider is reported as second-grade project manager, that person shall have been the major principal of construction of two engineering projects, and at least one of the projects shall be the engineering project required by the qualification standards for second-grade construction enterprises; and 3. Where the foreign service provider is reported as the third-grade project manager, that person shall have been the major principal of construction of two engineering projects, and at least one of the projects shall be the engineering project required by the qualification standards for third-grade construction enterprises. The number of the foreign service providers that are recognized as the project manager of the enterprise according to this provision may not exceed one third of the number of project managers provided for by the qualification standards for construction enterprises; (5) Where a foreign-funded construction enterprise employs foreign service providers as its technical or managerial personnel, each of such personnel shall reside in China for at least accumulative 3 months each year. CHAPTER V RECOGNITION OF THE ACHIEVEMENTS IN CONTRACTED PROJECTS After implementation of the Provisions, where the foreign investors of a foreign-funded construction enterprise contract, outside of the People's Republic of China, any project with any Chinese construction enterprise through joint contracting, or subcontracts the project to any Chinese construction enterprise, the achievement made in that contracted project may be recognized as the achievements made in contracted projects by that foreign-funded construction enterprise in its application for qualification of construction enterprise or the annual qualification examination. CHAPTER VI SCOPE OF THE PROJECTS CONTRACTED The "joint contracting by Chinese and foreign construction enterprises" mentioned in Paragraph 4 of Article 15 of the Provisions refers to that a foreign-funded construction enterprise may contract projects jointly with domestic-funded construction enterprises, Chinese-foreign equity joint construction enterprises and Chinese-foreign cooperative joint construction enterprises. CHAPTER VII TIME FOR ACCEPTANCE OF THE QUALIFICATION APPLICATIONS The period between December 1, 2002, and October 1, 2003, is the transition of concurrent implementation of Order No.32 of the Ministry of Construction and the Provisions. During this transition, the departments of qualification administration will accept the qualification applications filed by foreign-funded construction enterprises at any time. After October 1, 2003, the qualification applications of foreign-funded construction enterprises shall be processed according to the time for acceptance of the qualification applications of domestic-funded construction enterprises. CHAPTER VIII RELATION BETWEEN THE PROVISIONS AND THE FORMER ORDER NO.32 OF THE MINISTRY OF CONSTRUCTION According to Article 26 of the Provisions, prior to October 1, 2003, the projects contracted within China by foreign enterprises shall still be executed in accordance with the former Order No.32 of the Ministry of Construction, the Provisional Measures for the Qualification Administration of Foreign Enterprises Contracting Projects within China: (1) A foreign enterprise that has obtained the qualification certificate of foreign enterprise for contracting projects may continue contracting projects within China according to the requirements of the Provisional Measures for the Qualification Administration of Foreign Enterprises Contracting Projects within China, including undertaking the approved construction project that hasn't been completed, applying for expansion of the areas of the contracted projects, and applying for extension of the qualification certificate; (2) A foreign enterprise that hasn't obtained the qualification certificate of foreign enterprise for contracting projects may still apply for the qualification certificate of foreign enterprise according to the provisions of the Provisional Measures for the Qualification Administration of Foreign Enterprises Contracting Projects within China; (3) After October 1, 2003, the departments of qualification administration will no longer accept the application for qualification of foreign enterprise for contracting projects within China, where the contract duration or the actual performance period extends to after October 1, 2003, the foreign enterprise may continue to complete that project. |
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