Index of Content

MOC Issues Rules to Implement Regulations on the Administration of Construction Surveying and Engineering Design Qualifications


  1. INTRODUCTION


    • The Ministry of Construction ("MOC") issued the Opinions Concerning the Implementation of Regulations on the Administration of Construction Surveying and Engineering Design Qualification (the "Implementing Opinions") on 21 August 2007. The Implementing Opinions are designed to implement the Regulations on the Administration of Construction Surveying and Engineering Design Qualifications ("Decree 160") and the Construction Engineering Design Qualification Standards ("Circular 86") promulgated by the MOC on 26 June 2007 and 29 March 2007 respectively.


    • The Implementing Opinions stipulate further requirements for applicants for construction surveying and engineering design qualifications, as well as specifying the procedures and documentation required for the application process. Furthermore, they provide definitions and clarify the meaning of certain terms used in Decree 160 and Circular 86, including track records and work scopes. Most notably, transitional provisions are set out in the Implementing Opinions to address the applicability of the new provisions in Decree 160 and Circular 86 in relation to enterprises holding construction engineering design qualifications granted under the old qualification regulations. On a more practical note, a set of sample Construction Surveying and Engineering Design Qualification Application Forms and Guidance Notes are attached to the Implementing Opinions.

  2. IMPLEMENTING RULES ON THE APPLICATON OF CONSTRUCTION SURVEYING AND DESIGN QUALIFICATIONS


    • Article 1(1) of the Implementing Opinions provides that any enterprise having attained an Enterprise Legal Person Business Licence in the People!/s Republic of China is eligible to apply for a construction surveying or engineering design qualification. A partnership enterprise holding a Partnership Enterprise Business Licence can also apply for a construction engineering design firm qualification. This reaffirms the general regulatory approach adopted under the previous regulations that construction surveying and engineering design qualifications will only be granted to PRC enterprises having independent personality, but not to foreign legal entities.


    • Restating the present policy that the construction surveying market is not open to foreign investment, Article 1(2) of the Implementing Opinions provides that the construction authority will not accept applications for construction surveying qualifications by foreign invested enterprises, regardless of whether it is in the form of fresh establishment, restructuring, merger takeover or the like. In contrast, foreign investment in construction engineering design enterprises is allowed under the Regulations on the Administration of Foreign Invested Construction Engineering Design Enterprises ("Decree 114"), which provides that the relevant qualification regulations and rules (of which these Implementing Opinions form part) are applicable to enterprises set up under Decree 114.


    • Significantly, Article 1(5) has extended the scope of qualification upgrading applications. First time applications by Grade B engineering construction design qualification holders for Grade A (i.e. the top grade) industry-based qualifications, specialist qualifications, and specialist item qualifications with respect to sectors covered by an existing industry-based or specialist Grade B qualification are treated as an upgrade application. This, to some extent, mitigates the general rule limiting first time applications to Grade B construction engineering design qualifications by indirectly allowing first time application of Grade A qualification through the route of qualification upgrading application.


    • Furthermore, a two year transitional period is granted under Article 1(6) of the Implementing Opinions with respect to the new specialist sectors introduced under Circular 86 (engineering design qualifications). During the transitional period ending on 31 March 2009, applications for these new specialist engineering design qualifications and specialist item qualifications as set out in Article 6(41) of the Implementing Opinions are not subject to the restrictions limiting first time applications to Grade B qualifications. In other words, a first time applicant for these specialist sectors is eligible to obtain a Grade A (i.e. the top grade) construction engineering design qualification.


    • Article 1(7) of the Implementing Opinions provides a broader interpretation to the expression "highest grade" stipulated in Article 17(2) of Decree 160. A construction general contracting enterprise is allowed under Decree 160 to apply for a construction engineering design qualification of the grade corresponding to the grade of its construction general contracting qualification. This means that an enterprise with the highest grade of construction general contracting qualification, such as a special grade qualification, is eligible to apply for the highest grade of construction engineering design qualification, namely a Grade A qualification, provided that these qualifications relate to the same industry or similar industries. Article 1(7) of the Implementing Opinions clarifies that this concession extends to applications for Grade A construction engineering design qualifications by enterprises holding an Grade A construction general contracting qualification (or higher).


  3. WORK SCOPE PERMITTED UNDER THE CONSTRUCTION ENGINEERING DESIGN QUALIFICATIONS


    • The Implementing Opinions elaborate and, arguably, extend the work scope of construction engineering design qualifications. Article 4 provides that enterprises with construction industry-based qualifications or specialist qualifications are entitled to undertake construction specialist item design works, such as decoration design works, curtain wall design works, light steel frame, intelligent systems, lighting design and fire prevention design works at the corresponding level, and do not need to apply for the corresponding specialist item design qualifications.


    • Furthermore, Article 35(9) sets out in more specific terms the work scope that is permitted in relation to the general construction engineering qualification. It is provided that enterprises holding a general construction engineering qualification are authorised to engage in engineering design works, construction project management services, and technical, consulting and management services in relation to any industry. Such enterprises holding a Grade A general construction qualification or Grade A specialist construction qualification are also entitled to undertake general contracting works and the corresponding construction building works within the relevant industry. It is arguable whether this provision would enable such enterprises to carry out construction building works which would otherwise be exclusively confined to holders of special grade construction qualifications.


    • With respect to other construction engineering design qualifications, the work scope encompasses engineering design works, general contracting works, project management services, and the relevant technical, consulting and management services that are specifically permitted in the relevant qualification certificates. Pursuant to Article 39, these provisions with respect to work scope only apply to enterprises holding engineering design qualifications granted under Decree 160 and Circular 86. The work scope relating to the engineering design qualification certificates issued under the previous regulations are still determined by the rules stipulated in the previous regulations.


  4. TRANSITIONAL PERIOD


    • The Implementing Opinions provide a transitional period in relation to construction engineering design qualifications issued under the previous licensing scheme. Under these transitional provisions, industry-based qualifications, partial industry-based qualifications, principal industrial qualifications, general engineering firm qualifications and specialist engineering firm qualifications remain valid until 31 March 2010. In contrast, enterprises with specialist item qualifications must meet the criteria stipulated in Decree 160 and Circular 86 before 31 March 2008.


    • The aforementioned provisions are not applicable to temporary qualifications. The temporary qualifications will be formalised provided that the relevant criteria under the previous licensing scheme or those stipulated under Circular 86 are satisfied. However, where the formalisation is granted in accordance with provisions under the previous regulations, the relevant qualifications are only valid until 31 March 2010.


  5. CONCLUSION


    • The Implementing Opinions have further clarified certain issues with respect to the administration of construction surveying and engineering design qualifications, such as upgrading, work scope, and the ability of holders of such qualifications to undertake general contracting works. The transitional period in particular should be welcomed by the engineering design industry, as it provides enterprises holding qualifications issued under the previous regulatory regime a period of time to make adjustments to comply with the standards stipulated in Decree 160 and Circular 86.


Lovells Newsflash
September 2007



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