The above projects are mainly implemented through government financing platform companies, local governments holding state-owned enterprises or government-enterprise cooperation. As we all know, compliance is the lifeline and bottom line of project implementation. It is impossible to cross the red line of law and policy whether it is mechanism innovation or new vest for old wine in new bottles. This is common sense, but it is often broken. In order to explore and clarify the legal and policy boundary conditions involved in the comprehensive development projects in this area, the following discussion is made to attract more attention.
1. Have you approved the regional development plan? Did you get the birth certificate of the 20-digit coding project before implementation?
For new projects, whether it is government approval or enterprise investment approval, it is a prerequisite to obtain the 20-digit project approval code certificate of the online approval and supervision platform for investment projects. Under the current regulations, according to the Regulations on Government Investment which came into effect on July 1 2065438 and related administrative regulations, government investment projects are collectively referred to as government investment projects, and the examination and approval system is implemented in four ways: government investment subsidies, capital injection, investment subsidies and loan interest subsidies.
According to the Management Regulations on Approval and Filing of Enterprise Investment Projects, which came into effect on February 20 17, and related administrative regulations and rules, and according to the Guidance Catalogue for Industrial Structure Adjustment and the Catalogue for Approval of Enterprise Investment Projects, the 20-digit project startup code was obtained through filing or approval.
At the same time, it should be noted that the pre-approval procedures, such as approval, licensing or filing, should be improved for existing projects and new projects through packaging, such as corresponding project establishment, transfer, expansion and bidding. Under the current policy background, it is difficult for some "trilateral" projects (while planning, bidding and construction) and "five-pat projects" (slapping the forehead, shoulders, breasts, thighs and tables) to implement and realize project financing, and it is also difficult to pass the project final accounts audit. It causes difficulties in project financing, unfinished projects and audit risks.
2. Did you participate in the bidding for the regional development project?
In practice, comprehensive development projects in some districts can often be audited, especially the local government financing platform companies (referring to the platform companies that "the local government debts undertaken by them have been included in the government budget, properly handled and clearly announced that they will no longer undertake the financing function of local government debts in the future" and hold state-owned enterprises as the main body of project implementation or undertaking). What's more, very few projects are implemented through government-enterprise cooperation, and the above two types of enterprises and social investors directly set up project companies without bidding.
The procurement subject of comprehensive development projects in the region is the government, the industry authorities or institutions authorized by the government; Sources of funds include government investment subsidies, capital injection, investment subsidies, loan interest subsidies and third-party income from project operation; Cooperation mainly covers public infrastructure and public services. According to Article 3 of the Bidding Law of People's Republic of China (PRC) and its implementing regulations; Article 4 of the Procurement Law of People's Republic of China (PRC) and its implementing regulations; Article 15 of the Measures for the Administration of Franchising of Infrastructure and Public Utilities and related regulations require the selection of project investors through competition. Whether it is a local government financing platform company, a holding state-owned enterprise, or a government-enterprise cooperation investor, it is necessary to perform the bidding and procurement procedures. Otherwise, there is compliance risk in the project implementation process, and there is a risk that it cannot be paid through audit.
During the implementation of the comprehensive development project in this area, do the sub-projects need to be re-tendered? Due to the large investment scale, complex construction content, different types and long cooperation period, in the overall bidding of the project, the boundary conditions of the sub-projects are not accurate, and most of them are invited according to the feasible investment estimate. During the periodic implementation of the project, due to planning adjustment, information price adjustment, construction content change and other reasons, corresponding changes will inevitably occur. Therefore, whether it is necessary to re-invite tenders cannot be generalized. The author believes that according to Article 46 of the Bidding Law and Article 57 of the Regulations for the Implementation of the Bidding Law; Article 30 of the Contract Law stipulates that it should be combined with the provisions of government investment regulations and relevant administrative regulations and policies: if the sub-project changes involve major changes in investment budget, construction site, construction scale, main construction contents, technical scheme and construction standards, resulting in re-examination and approval of the feasibility study report of the construction project, or substantial changes in the contract subject matter, quantity, quality, price or remuneration, performance period, performance place and method, it shall be implemented accordingly.
3. What is the subject matter of bidding and purchasing for regional development projects you have done? Does it lead to the government's bottom or a fixed return?
In practice, regardless of PPP mode, authorization mode, franchise mode and self-seeking balance and rebalancing mode, most comprehensive development projects in the region adopt the project return mechanism of "reasonable income from cost identification". So how to examine, identify and distinguish whether it constitutes illegal government borrowing and fixed return? Based on practical experience, the author summarizes the twelve-character judgment criteria of "incremental financing, linking performance and taking risks".
For example: comprehensive development project investment in a certain area +EPC survey-design-construction general contracting project; The subject matter of tender is divided into two parts: first, the installation fee of engineering construction is quoted downwards (survey fee, design fee and engineering construction fee are quoted downwards according to a certain proportion); Second, the quotation of floating rate of return on investment in engineering construction ("Engineering construction-related expenses, land acquisition and demolition-related expenses, and pre-project (planning, planning and consulting) investment rate are all 30-40% higher than the benchmark interest rate of RMB loans for more than five years promulgated by the People's Bank of China"); You can even find out on the bidding website that the winning announcements of some projects are "annualized rate of return" and "rate of return on investment in fixed assets" and so on.
The project construction, financial investment, land acquisition and demolition corresponding to the above indicators have no operational content, but only involve project investment and construction, which is obviously substantially different from the return mechanism of "incremental finance, linked performance and risk-bearing", which is the core connotation of the comprehensive development mechanism of the district. According to the Notice of Six Ministries on Further Standardizing Local Government's Debt Financing Behavior (FB [2017] No.50) and relevant administrative regulations and rules,
In addition, the financial indicators of all projects or services involving government subsidies or payments should be determined through competitive bidding, otherwise there is a risk of failing to pass the assessment settlement or final accounts.
4. What are the cooperation contents and project output boundaries of the district development projects you have done? Is there any substantive operation content?
The comprehensive development of the district is based on new urbanization, integration of production and city, sustainable development of regional economy, land development and utilization, industry introduction, projects, groups, self-balance and incremental financial output of the district, and cooperation between the government and social capital. Through long-term contractual relationship, the district will make overall planning, design, investment and financing, construction, operation and maintenance in the planned closed area, and realize the district's economy, society, humanity and environment.
The district comprehensive development project is to build an integrated public product by constructing integrated cooperation content and relatively market-oriented cooperation mechanism, and operate in a closed way, which embodies comprehensiveness and development. While building, revitalizing and operating regional public, industrial, commercial and cultural resources, we will introduce industries to develop the real economy and promote the high-quality development of regional economy and society, and generally regard regional incremental income as an important source of investment return.
From the above point of view, a large number of projects whose cooperation scope and output standard are only land consolidation and public infrastructure construction, and projects that rely on financial funds to pay for them are not qualified comprehensive development projects in the region.
5. Did you agree on the income sharing of land consolidation and development in the district development project?
The contract of a regional comprehensive development project consulted by the author stipulates: "Except for the part retained by provinces and cities and special funds, all the land transfer income of the project will be returned to the project company for operation and use as the construction funds within the red line of the project, which will be used to repay the early financing, development before land supply (including land acquisition compensation and land housing resettlement), road pipe network and infrastructure construction costs". The above clauses involve obvious violation of the scope of land consolidation projects, and we look at the policy basis:
According to the provisions of the Measures for the Administration of Land Reserve issued by four ministries and commissions in 20 18 10/3, the only subject of land reserve institutions is the institutions that are approved by the people's governments at or above the county level, have independent legal personality, are subordinate to the competent departments of land and resources in administrative divisions, and undertake the land reserve work within their respective administrative areas. A pile actually refers to the land reserve center that is included in the land reserve list management of the Ministry of Land and Resources.
According to Article 5 of the Measures for Financial Management of Land Reserve Funds promulgated by the Ministry of Finance and the Ministry of Land and Resources and implemented on February 1 in 1965, there are only four legal sources of land reserve funds: 1, transferring income; 2. Land revenue fund; 3, local government bonds to raise funds; 4 other financial funds approved by the financial department. It is concluded that it is illegal to use funds other than the above four categories for land reserve projects.
Then, is it illegal to include the land consolidation service of regional comprehensive development (note here: "service")? The second half sentence of Article 14 of the Measures for the Financial Management of Land Reserve Funds: "Among them, the budgets for government procurement and government procurement services shall be prepared separately according to regulations." This paper defines the boundary between engineering and service in land reserve under the rigid constraint of financial budget. It can be concluded that local governments can implement projects and relocation compensation services through government procurement and government procurement service budgets respectively (in practice, relocation compensation accounts for more than 60% of the total land reserve funds).
The expenditure path of budgetary funds: the land reserve institution arranges expenses such as compensation for land acquisition and demolition and land development. Allocated by the financial department from the land transfer income. According to the nature of expenditure and the classification of government revenue and expenditure in 2020, fill in the expenditure function classification of government revenue and expenditure category 2 12 "urban and rural community expenditure", paragraph 08 "special debt income arrangement corresponding to the revenue and expenditure of state-owned land use right transfer" and item 0 1 "compensation for land acquisition and demolition" respectively. At the same time, the economic categories of expenditure are listed as follows: 3 10 capital expenditure, 09 land compensation fee, 10 resettlement fee,1/above-ground attachments and young crops compensation fee, 12 demolition compensation fee and 365433.
6. Are there any incentive, compatibility, performance-related and exit mechanisms for the district development projects you have done?
Article 52 of Financial Rules for Capital Construction (implemented on April 26, 201) issued by the Ministry of Finance stipulates that the performance evaluation of the project should focus on the construction cost, project cost, investment control, the difference between production capacity and design capacity, debt repayment capacity, sustainable operation capacity, etc. According to the management needs and the characteristics of the project, the evaluation indexes such as social benefit index, financial benefit index, project quality index, construction period index, capital source index, capital use index, actual investment payback period index and actual unit production (operation) capacity investment index are selected.
The comprehensive development project in the district subverts the "stock reward" mechanism of government investment projects and individual projects, and establishes a new mechanism of "self-hematopoiesis, incentive compatibility and incremental reward" formed by project construction, industry introduction, operation orientation, performance linkage and risk burden. It is clearly stipulated in the agreement that the government will not spend money, guarantee, finance, bear all expenses and pay off debts. Only after completing the high-quality development performance evaluation indicators composed of key indicators such as new fiscal revenue, industry, employment, people's livelihood, ecological environment protection and urban construction within the scope of project cooperation, and after being confirmed by a third party audit, the government can pay the investment and operating returns that meet the new fiscal revenue, otherwise the investors should bear the corresponding risks and withdraw according to the rights, obligations and risks agreed in the contract.
7. What is the reward mechanism of the regional development projects you have done? Is there any government invisible debt?
1. The profit return mode of the project is that under the performance appraisal, the competent department of project development pays the construction cost, operating expenses and reasonable return on investment according to the agreement, and the upper limit is not higher than the shareable part of the project subject agreed in the agreement on fiscal revenue increment in the project area. If the fiscal revenue in the project area does not increase, investors will not be able to obtain income from the development industry authorities or implementing agencies, nor will they form government debts or invisible debts.
Second, the relationship between the industry authorities or project implementation agencies of district development projects and project investors is based on a long-term contractual relationship, which is linked to performance on the premise of generating incremental financial funds and paid according to performance. Including but not limited to financial revenue increment, industrial import operation, economic development, social benefits, environmental construction and other performance appraisal indicators. The contract should clearly stipulate that the government will not invest, guarantee, finance, bear all expenses or be in debt.
Thirdly, according to the Government Accounting Standard No.8-Liabilities (Caishui [2018] No.31), "the amount of this obligation can be measured reliably. ..... obligations arising from future economic business or events are not current obligations and should not be recognized as liabilities ". Because the future withdrawal amount is uncertain, and even there is uncertainty about whether to pay, the payment amount of the corresponding obligation can only be measured according to the performance appraisal under the premise of generating financial capital increment in the risk allocation of the contract mechanism, so it should not be classified as local government debt.
Eight, whether the regional development project you run can pass the whole process audit.
The cooperation contents of comprehensive development projects in this area are mainly public infrastructure and public services, which are of a public nature and involve government payments or subsidies. According to the provisions of the Audit Law and the Regulations on the Implementation of the Audit Law, combined with the Measures for the Administration of Franchising of Infrastructure and Public Utilities issued by the National Development and Reform Commission and other six ministries and commissions, "audit institutions at or above the county level shall audit franchise activities according to law". Article 5 of the Notice of the National Audit Office on Printing and Distributing the Audit Provisions for Government Investment Projects (SZF[20 10] 173) stipulates that "audit institutions shall focus on the construction and management of key government investment projects and urban infrastructure, affordable housing, schools, hospitals and other projects involving public interests and people's livelihood". The Ministry of Finance 10 [20 19] stipulates that the investment, construction and operation costs of the project should be strictly controlled and the follow-up audit should be strengthened.
The audit will run through the whole process of the project from project establishment, procurement, implementation to handover or withdrawal after the expiration of cooperation, focusing on reviewing four major legal documents (1, feasibility study, preliminary design and bill of quantities; 2. Answering and clarifying the bidding documents (including but not limited to deviation form, commitment letter, investment and financing plan, construction and operation plan, performance plan, legal plan, return mechanism, risk allocation and incentive compatibility mechanism). ; 3, the purchase results negotiation confirmation memorandum; 4. Project contract, supplementary agreement, work contact list, confirmation letter, etc. ) and compliance and consistency in the implementation process (whether there are substantial changes); Review the core boundary conditions such as investment and financing, fund management, project settlement, final accounts of completion, quality standards and whether government payment increases government debt or invisible debt.