On the legal knowledge of the legal knowledge of the project of the Company limited by guarantee of Shenzhen City
The engineering guarantee includes the engineering bid guarantee, the project performance guarantee and the project payment guarantee. The following brief introduction:
(a) the basic concept of project security (Shenzhen City financial investment Company limited by guarantee)
1, the concept of the bid security
Bid security is provided by the guarantor to the tenderer to ensure that the bidder shall participate in the bid invitation in accordance with the provisions of the tender documents. The Bidder withdraws the bid documents within the validity period of the bid, or does not provide a performance guarantee after the successful bidder does not sign the construction contract, or does not provide a performance guarantee, the guarantor shall perform the obligation of guarantee in accordance with the contract.
2, the concept of performance guarantee
Performance guarantee is provided by the contractor to the employer or to the general contractor for the contractor to ensure that the contractor or subcontractor shall perform the obligations stipulated in the contract. Performance guarantee is divided into many kinds:
The first is a comprehensive performance guarantee, that is to say, as long as the guarantor (contractor or subcontractor) fails to fulfill the obligations under the contract, such as the quality is not qualified, not on time, and so on, to ensure that people assume the responsibility for the performance or compensation.
The second is a single performance guarantee, mainly including:
A, quality assurance is the quality of the project is not qualified, the guarantor to assume responsibility for a guarantee;
B, the completion of the guarantee: is to ensure that the contractor to ensure the completion of the project in accordance with the plan.
C, guarantee guarantee: it means that the guarantee of the contractor in the warranty period to fulfill the warranty obligations.
D, advance payment guarantee guarantee: refers to the guarantee that the contractor will advance payment application in the construction of the project, the guarantee is paid by the construction contractor, in general, after the start, the owner (Jia Fang) general to the contractor to provide 30% or so of the advance, in this case, the owners worried that the Contractor does not put in the project, or abuse, which requires the contractor to provide a guarantee, to prevent the occurrence of such incidents.
There is also a kind of guarantee, the actual in the project procurement often occurs, is the supplier performance guarantee, this kind of guarantee is the guarantee that the supplier in accordance with the supply contract to fulfill the obligation of delivery of goods. Ensure the quality of the goods on time, guarantee the quality and ensure the guarantee.
3, payment guarantee (payment guarantee) concept
Payment guarantee is provided by the contractor to the contractor, or to the contractor, or to the contractor, the contractor, the contractor, the contractor, the contractor, the contractor, the supplier of materials and equipment, the construction worker to pay the cost and price, and the guarantee of the wages and other payments.
The common payment guarantee mainly includes four types:
The first one is the payment guarantee, which is submitted by the employer to the contractor, and the guarantor shall guarantee that the project shall be paid in accordance with the contract;
The second one is the payment guarantee provided by the contractor to the subcontractor, which is paid by the contractor to the subcontractor in time;
The third one is the payment guarantee provided by the contractor to the material supplier, which shall be paid by the contractor in accordance with the contract;
The fourth one is the payment of the wages paid by the contractor or the employer of the contract, which is guaranteed by the contractor or the employer (the owner).
4, credit certificate
Credit certificate business refers to the bank in accordance with the requirements of the applicant, in the form of bank credit certificate, to the tender, when the applicant (bidder) bid, in the successful project construction process, the bank to provide its commitment to support the project in the amount of the required credit support of a legal instrument.
Credit certificate business is suitable for the enterprise to participate in the construction bidding.
Credit certificate business, bid guarantee, performance guarantee is generally Guangdong Province bidding (such as Shaanxi, Yunnan) process, the tender requirements (construction enterprises) bidder submit the credit provide proof, you can participate in the tender, later need not provide performance guarantee.
(two) the maximum amount of project guarantee and guarantee period (Shenzhen City financial investment Company limited by guarantee)
1, the maximum amount of the bid guarantee, guarantee period
According to the current state and Shenzhen city law, the amount of the bid security is not more than 2% of the total price of the project, and no more than 800000 yuan.
Current practice practice generally in accordance with the total price of 2% calculation, such as the calculation of more than 800000 yuan, the amount of the guarantee by 800000.
During the period of validity for the period of 28 days for the period of validity of the period of bid validity. The period of validity of the tender shall be stipulated in the tender documents as of the date of the tender.
2, the maximum amount of performance guarantee, guarantee period
According to the current state and Shenzhen city law, the amount of the performance bond is generally not less than 10% of the bid price, but to take the lowest bid method, the amount of security is not less than 15% of the bid price.
The current operation, in addition to the above provisions, such as price and between the base price difference exceeds in price 10% or 15% (the lowest bid method), many take the shortfall guarantee way, is the amount of the guarantee is the difference between the price and the price.
Under current law, the guarantee period ended during the engineering construction contract agreed by the completion of the project qualified after the date of 30 days to 180, but according to the provisions of Shenzhen City, guarantee period ended during the engineering construction contract agreed projects completed on the quality, the current Shenzhen operation according to the general provisions of the Shenzhen operation.
3, the maximum amount of payment guarantee
The performance guarantee and payment guarantee are generally open to the owner, and the owner is also paid to the contractor to pay the guarantee, and the amount of the payment and the amount of the performance guarantee is generally equal.
Payment of the date of payment of the letter of guarantee for the date of the actual payment of the project.
So, relatively speaking, the payment guarantee period is longer, the greater the risk.
4, credit certificate
Credit certificate of the amount of the bid price is generally 10%, the highest bid price is not more than 30%. Credit certificate period is generally 30 days, the maximum not more than 3 years.
(three) project guarantee (Shenzhen City financial investment Company limited by guarantee)
In accordance with the provisions of the Ministry of construction, the project guarantee can be general guarantee, joint guarantee.
The so-called general guarantee, that is to say, the guarantor must first find the guarantor to bear the responsibility, only after the litigation, arbitration and so on, the means of implementation, is to ensure that people still can not fulfill the obligations of the guarantor, the guarantor claims responsibility.
The so-called joint and several guarantees that the guarantor can not only require the guarantor to assume responsibility, but also at the same time to ensure that people assume responsibility.
Whether the general guarantee or joint and several guarantee, the guarantee of the person's right to claim the right of defense.
But in Shenzhen city has clearly ruled out for a general guarantee liability, although the provisions of the suretyship liability of the guarantee for joint guarantee, but also clearly stipulates Shenzhen engineering guarantee for demand and irrevocable guarantee. This kind of guarantee is actually an independent guarantee, that is, as long as the guarantor in accordance with the terms of the guarantee to provide the corresponding proof, to ensure that people do not ask the people to fulfill their obligations, they must assume responsibility for the guarantee. In such an independent guarantee, the guarantor shall not interfere with the basic relationship between the guarantor and the guarantor, and may not claim any defense outside the guarantee.
At present, the practice of the operation in Shenzhen are independent guarantee. Otherwise, the construction bureau is not for the record, but also not issuing construction permits.
(four) a form of guarantee and qualification of the guarantor (Shenzhen City financial investment, investment Company limited by guarantee)
At present, in Shenzhen, guarantees in the form of: cash deposit guarantee, bank guarantee, bank acceptance, acceptance notes, Paul pay by cheque (such as Dongguan permitted), security company guarantee, insurance company guarantee (in Dongguan and other places).
Can be seen, the current has the qualifications of a bank, Guarantee Corporation, insurance companies (such as in Dongguan).
Here, we need to say that the company guarantee, a lot of local construction enterprises and engineering, the relationship is good, Party A only requires the Guarantee Corporation to bid, performance, payment guarantee, Guarantee Corporation issued by the general charges for the lower, generally only 3/1000 to 8/10000, and bank compliance, payment guarantee generally reached three to two percent. This piece of business market is very big, the company's leadership can consider to develop the business, but to pay attention to choose the strength of the relatively strong security companies.
(five) guarantee responsibility (Shenzhen City financial investment Company limited by guarantee)
1, the guarantee liability conditions
(1) in the case of any of the conditions in which the bid bond is to be guaranteed, the guarantor shall bear the responsibility for the guarantee.
First, the Assured shall withdraw the bid within the validity period stipulated in the bid invitation documents;
Second, is the guarantee of the successful bidder or not to sign the construction contract;
Third, the person in the bid after the successful refusal or failure to provide a performance guarantee.
(2) the conditions for the occurrence of a performance guarantee
Notice of a written claim for the guarantee of the signature and seal of the company and the beneficiary.
(3) the conditions for the payment of the guarantee
A written claim notification that the guarantor receives the signature and seal of the beneficiary.
(4) the conditions for the occurrence of the legal liability of credit
The guarantor is unable to carry out the contract and the credit support is needed.
2, specific guarantee responsibility
(1) the responsibility of the bid security
In theory, the bid security responsibility is in the maximum amount of guarantee,
A, the bid invitation to tender; or
B, the difference between the price and the price in the price and the second in the payment;
C, pay bid bond.
Now Shenzhen operation is that the beneficiary of the payment of the amount of the bid to ensure that the people directly.
(2) the responsibility of a performance guarantee
The Contractor shall, for the reason of the non - owner and fail to fulfill the obligations stipulated in the contract of the construction contract, the Contractor shall, in accordance with the following ways, fulfill the obligation to ensure that:
A, providing funds, equipment or technical assistance to the contractor to enable it to continue to perform its contractual obligations;
B, directly take over the project or other contractors agreed with the consent of the owners, to continue to fulfill the contract obligations, the owners are still in accordance with the original contract to pay the project, beyond the original part of the contract, to ensure that the amount paid by the;
C, in accordance with the contract, in the scope of the guarantee, to pay compensation to the owners.
In practice, the operation is generally as follows: the beneficiary to the guarantor to pay compensation, of course, no more than the maximum amount of compensation.
(3) payment of the guarantee
Payment to be paid, the maximum not exceeding the amount of the guarantee.
(4) credit certificate guarantee responsibility
Provide credit funds to the contractor for the construction of the project. Of course, the possibility of providing credit is extremely low.