In recent years there has been a tendency for local government departments in charge of construction to review the filing of construction contracts more aggressively, and to expand the purview of their administrative powers.
Managing Partner
V&T Law Firm
In Beijing, for example, the writers served as legal counsel on a large-scale construction project which started in 2004. It complied fully with the conditions for construction contracts set out in the 1999 Red Book published by the Fédération Internationale des Ingénieurs-Conseils and was successfully filed with the city’s construction committee. However in 2010, the construction tender and contract for a related, subsidiary project were required to adopt the Beijing Municipality Construction and Municipal Infrastructure Projects Model Tender Documents compiled by the city’s administrative departments. No major changes to the clauses of the model text were permitted. The parties were not able to increase the amount of liquidated damages for delay to the project, add clauses on liquidated damages, transfer part of the risk to the contractor or to make any other substantial changes to the provisions of the model text. In other provinces, the local departments in charge of construction also require the adoption of locally drafted model contracts or the model construction contracts introduced by the former Ministry of Construction in 1999.
This phenomenon is not only inconsistent with the need to put the construction market in China on a market basis, and not in line with international practice, it is also in conflict with the law.
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Wang Jihong is the managing partner of V&T Law Firm. She practises in the field of infrastructure development. Zhang Xiaofeng is a partner at V&T Law Firm
