Provisions for the Administration of Foreign-invested Construction Project Service Enterprises

(Promulgated by the Ministry of Construction and Ministry of Commerce on January 22 2007 and effective as of March 26 2007.)

Order of the Ministry of Construction and Ministry of Commerce No.155

Article 1: These Provisions have been formulated pursuant to laws and administrative regulations such as the PRC Construction Law, PRC Law on the Invitation and Submission of Bids, PRC Sino-foreign Equity Joint Venture Law, PRC Sino-foreign Cooperative Joint Venture Law, PRC Wholly Foreign-owned Enterprise Law, Regulations for the Administration of Construction Project Quality, etc., in order to further open up to foreign investment and regulate the administration of foreign-invested construction project service enterprises.

Article 2: These Provisions shall govern the establishment in the People's Republic of China of foreign-invested construction project service enterprises, applications for foreign-invested construction project service enterprise qualifications and the regulation of foreign-invested construction project service enterprises.

Article 3: For the purposes of these Provisions, the term "foreign-invested construction project service enterprises" means qualified Sino-foreign equity joint venture construction project service enterprises, Sino-foreign cooperative joint venture construction project service enterprises and wholly foreign-owned construction project service enterprises lawfully established in the People's Republic of China.

For the purposes of these Provisions, construction project services include construction project supervision, project bid invitation agency and project pricing consultation.

Article 4: If a foreign investor wishes to establish a foreign-invested construction project service enterprise in the People's Republic of China to engage in construction project service activities, it shall obtain an approval certificate for a foreign-invested enterprise issued by the department in charge of commerce, register with the administration for industry and commerce and obtain the relevant qualification certificate for a construction project service enterprise issued by the department in charge of construction.

Article 5: When engaging in construction project service activities, a foreign-invested construction project service enterprise shall comply with the laws, regulations and rules of the People's Republic of China.

The lawful business activities and lawful rights and interests in the People's Republic of China of a foreign-invested construction project service enterprise shall be protected by the laws, regulations and rules of the People's Republic of China.

Article 6: The State Council's department in charge of commerce and the departments in charge of commerce of the people's governments of provinces, autonomous regions and municipalities directly under the central government lawfully authorized by the State Council's department in charge of commerce shall be responsible for the administration of the establishment of foreign-invested construction project service enterprises.

The State Council's department in charge of construction shall be responsible for the administration of the qualifications of foreign-invested construction project service enterprises; and the departments in charge of construction of the people's governments of the provinces, autonomous regions and municipalities directly under the central government shall be responsible for the administration of the qualifications of foreign-invested construction project service enterprises in their jurisdiction in accordance herewith.

Article 7: The establishment of foreign-invested construction project service enterprises shall be subject to the examination and approval of the departments in charge of commerce of the people's governments of provinces, autonomous regions and municipalities directly under the central government authorized by the State Council's department in charge of commerce.

If qualifications of an A-level foreign-invested construction project service enterprise are applied for, examination and approval shall be carried out by the State Council's department in charge of construction; if qualifications of a B-level or lower level foreign-invested construction project service enterprise are applied for, examination and approval shall be carried out by the department in charge of construction of the people's government of the province, autonomous region or municipality directly under the central government.

Article 8: The procedures for the establishment of a foreign- invested construction project service enterprise and for application for qualifications of a foreign-invested construction project service enterprise are set forth below:

(1) the applicant shall submit an establishment application to the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the central government of the place where the enterprise is to be established;

(2) within five days from the date of acceptance of the application, the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the central government shall forward the application materials to the department in charge of construction of the people's government of the province, autonomous region or municipality directly under the central government for its opinion;

(3) within 10 days from the date of receipt of the letter seeking its opinion, the department in charge of construction of the people's government of the province, autonomous region or municipality directly under the central government shall issue its written opinion; within 30 days from the date of receipt of the written opinion of the department in charge of construction, the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the central government shall render its written decision on whether or not to approve the application; if it grants approval, it shall issue an approval certificate for a foreign-invested enterprise; if it withholds its approval, it shall give a written explanation of its reasons;

(4) the entity that has obtained the approval certificate for a foreign-invested enterprise shall carry out enterprise registration procedures with the competent registration authority within 30 days; and

(5) to apply for qualifications of a foreign-invested construction project service enterprise after it has obtained its business licence of an enterprise with legal personality, the entity shall handle matters in accordance with relevant provisions on the administration of qualifications.

Article 9: The qualifications of a foreign-invested construction project service enterprise approved by the department in charge of construction of the people's government of the province, autonomous region or municipality directly under the central government shall be reported to the State Council's department in charge of construction for the record within 30 days from the date of approval.

Article 10: When applying to establish a foreign-invested construction project service enterprise, the following docum-entation shall be submitted to the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the central government:

(1) an application for the establishment of a foreign-invested construction project service enterprise;

(2) the contract for, and the articles of association of, the foreign-invested construction project service enterprise (if a wholly foreign-owned construction project service enterprise is being established, only the articles of association need be submitted);

(3) the notice of the preliminary approval of the enterprise name;

(4) the proofs of registration and proofs of creditworthiness from banks of the investors;

(5) the instruments of appointment and identification documents of the chairman of the board, members of the board of directors, managers, person in charge of project technology, etc., whom the investors intend to appoint; and

(6) the balance sheets and profit and loss statements of the investors for the most recent three years audited by a certified public accountant or by an accounting firm; if an investor has been established for less than three years, the balance sheets and profit and loss statements for the years since its actual establishment shall be provided.

Article 11: When applying for foreign-invested construction project service enterprise qualifications, the following documentation shall be submitted to the relevant department in charge of construction:

(1) an application for qualifications of a foreign-invested construction project service enterprise;

(2) the approval certificate for a foreign-invested enterprise;

(3) the business licence of an enterprise with legal personality;

(4) proofs of registration of the investors in their residing countries or regions, relevant proofs of results and proofs of creditworthiness from banks;

(5) the balance sheets and profit and loss statements of the investors for the most recent three years audited by a certified public accountant or an accounting firm; if an investor has been established for less than three years, the balance sheets and profit and loss statements for the years since its actual establishment shall be provided; and

(6) other documentation required under provisions for the administration of the qualifications of construction project supervision enterprises, project bid invitation agencies or project pricing consulting enterprises.

Article 12: The main documentation that these Provisions require applicants to submit shall be in the Chinese language. If the original of a supporting document is in a foreign language, a Chinese language translation thereof shall be provided.

Article 13: A foreign investor applying to establish a foreign-invested construction project service enterprise shall be an enterprise or other economic organization or a registered professional technician that engages in corresponding project services in its/his residing country.

Article 14: When applying for qualifications of a foreign-invested construction project service enterprise, the conditions required by the relevant standards for qualifications of a construction project supervision enterprise, project bid invitation agency or project pricing consulting enterprise shall be satisfied.

Article 15: If a foreign-invested construction project service enterprise wishes to apply to upgrade its qualification level or add other construction project service enterprise qualifications, it shall carry out relevant procedures with the relevant department in charge of construction in accordance with relevant provisions.

Article 16: If a foreign-invested construction project service enterprise amends the terms of its contract and articles of association, it shall carry out relevant procedures with the department in charge of commerce of the people's government of the province, autonomous region or municipality directly under the central government.

Article 17: If a foreign-invested construction project service enterprise, in the course of engaging in construction project service activities in the People's Republic of China, violates relevant laws or regulations such as the PRC Construction Law, PRC Law on the Invitation and Submission of Bids, Regulations for the Administration of Construction Project Quality, etc., or relevant provisions for the administration of qualifications, it shall be penalized in accordance with relevant provisions.

Article 18: The investment in and establishment of construction project service enterprises and the engagement in construction project service activities in other provinces, autonomous regions and municipalities directly under the central government by investors from the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan shall, mutatis mutandis, be handled in accordance herewith, unless otherwise specified in law or regulations or by the State Council.

Article 19: The State Council's department in charge of construction and the State Council's department in charge of commerce are in charge of interpreting these Provisions.

Article 20: These Provisions shall be effective as of March 26 2007.