November 27th.
Xinjiang was informed8 up
Typical cases of administrative law enforcement in bidding and bidding.
Mainly:Subcontracting, subcontracting, collusion
Data falsification, security, fire protectionWait.
Aspects.
Case 1A case of administrative punishment for a large production safety accident in a subcontracted project of a construction unit
1. Basic facts of the case
A collapse accident occurred during the construction of a village drainage project contracted by a construction unit, resulting in 7 construction workers being buried, of which 5 died after rescue and 2 were slightly injured, and the direct economic loss of the accident was about 7.62 million yuan. One isAfter the construction unit won the bid, the project management agency was not established, and the project leader, technical leader, quality inspector and safety officer who won the bid did not show up to perform their duties. Among them, the project leader, quality inspector, and safety officer violated the regulations and did not work in the construction unit. The second isThe construction unit subcontracted the project to Dong, an unqualified individual, and charged 5% of the management fee, and Dong and his partner A contracted the implementation of the project, and hired 1 project management personnel and 1 constructor, all of whom had no construction qualifications. In the actual construction process, the person in charge of the site and relevant personnel did not carry out safety education and training and safety technology disclosure to the operators, the safety protection was not equipped according to the standard, the safety production responsibility system and the emergency plan for safety production accidents on the construction site were not formulated, the safety technical measures and special construction plans were not prepared, the construction was not carried out according to the drawings, and the full-time safety management personnel were not equipped for supervision. The third isThe supervision unit did not actually set up the project supervision agency, the chief engineer did not arrive at the post to perform his duties, only assigned one supervisor to implement supervision on the site, did not review the safety technical measures and special construction plans during the construction process, and did not conduct inspections. The construction party failed to stop the construction behavior in time according to the drawings.
2. Basis and content of processing
In accordance with the "Reply to the Investigation Report on the Larger Collapse of the Drainage Project", the relevant local departments shall be in accordance with their dutiesSix people were investigated for criminal responsibility, four people were given administrative punishments, and 15 people were put on file for review and investigation. The competent department revoked the qualification certificate of the second-level registered constructor and the chief engineer of the project. According to Article 37 of the "Regulations on the Administration of Registered Constructors", "in violation of these provisions, if a registered constructor has one of the behaviors listed in Article 26 in his practice activities, the local people's ** construction department or other relevant departments at or above the county level shall give a warning and order correction, and if there is no illegal gains, a fine of less than 10,000 yuan shall be imposed; If there are illegal gains, a fine of less than 3 times the illegal gains and no more than 30,000 yuan shall be imposed". According to Article 58 of the Regulations on the Administration of Work Safety in Construction Projects, "if a registered practitioner fails to implement laws, regulations and mandatory standards for engineering construction, he shall be ordered to stop practicing for more than 3 months and not more than 1 year; if the circumstances are serious, the practice qualification certificate shall be revoked and registration shall not be granted for 5 years; If a major safety accident is caused, it will not be registered for life; if a crime is constituted, criminal responsibility shall be pursued in accordance with the relevant provisions of the Criminal Law", with reference to the "Ministry of Housing and Urban-Rural Development's Discretionary Standards for Administrative Punishment of Engineering Construction".Revoke the certificate of the second-level registered constructor of the project, and refuse to register within 5 years。The punishment of the chief engineer has been submitted to the Ministry of Housing and Urban-Rural Development for handling.
3. Case analysis
This case is a caseTypical cases of safety production accidents due to project subcontracting。The local authorities and industry authorities did not strictly implement the requirements of "managing the safety of the industry, managing the business, and managing the safety of production and operation", and did not pay enough attention to the safety production work in the field of engineering construction, the work was not real and detailed, the risk research and judgment was not comprehensive, the understanding of safety risks was insufficient, and the construction safety supervision responsibilities were not effectively implemented. The construction unit seriously violated the provisions of laws and regulations, subcontracted the project to individuals who were unqualified and did not have safety management capabilities, and did not arrange qualified and professional personnel to follow up and manage the whole process, resulting in chaotic construction management and blind work. The supervision unit is virtually non-existent, and the on-site supervisors stationed in the field do not stop the problem in time and report it to the competent department. As the primary person responsible for the quality and safety of the construction project, the construction unit failed to implement the responsibility of safety production management, and neglected to supervise the illegal and dereliction of duty of the construction and supervision unit. The responsible entities of all parties should deeply learn lessons, learn from the pain, be problem-oriented, strictly regulate project approval and construction site management, effectively prevent safety production risks, resolutely curb safety production accidents, and earnestly safeguard the safety of people's lives and property.
Case 2A case of administrative punishment for a contracting company's illegal subcontracting of a project
1. Basic facts of the case
The contractor, Company A, won the bid and signed the General Contracting Contract for Construction Projects with Construction Unit B. During the construction of the project, the contractor Company A signed 2 "Construction Project Labor Contracts" and 1 "Labor Contract Contract" with individuals who did not have qualifications, involving an amount of 1.63 million. Contractor Company A illegally subcontracts the project contracted by it to an unqualified individual for construction, which is an illegal subcontracting.
2. Basis and content of processing
According to Article 62 of the Regulations on the Quality Management of Construction Projects, "if the contractor violates the provisions of these Regulations by subcontracting or illegally subcontracting the contracted project, it shall be ordered to make corrections and confiscate the illegal gains..."The construction unit shall be fined between 0.5% and 1% of the contract price of the project; may be ordered to suspend business for rectification and reduce the qualification level; if the circumstances are serious, the qualification certificate shall be revoked", and the contractor Company A shall be fined. In accordance with Article 73 of the Regulations on the Quality Management of Construction Projects, "in accordance with the provisions of these Regulations, if the unit is fined and punished, the person in charge and other directly responsible personnel of the unit shall be fined between 5% and 10% of the amount of the fine".The person in charge of the contractor, Company A, shall be fined.
3. Case analysis
In order to maintain the public interest and the order of the construction market, ensure the safety of construction projects, and implement qualification management for construction enterprises, the relevant laws and regulations divide construction enterprises into several qualification categories according to the nature and technical characteristics of the project, and divide them into different qualification levels according to the registered capital, professional and technical personnel, technical equipment and completed construction project performance and other qualification conditions. Relevant enterprises can only engage in construction activities within the scope permitted by their qualification level after obtaining the corresponding level of qualification certificate. In this case, when the general contractor subcontracts the infrastructure construction project, it must be approved by the construction unit and handed over to an enterprise with the corresponding professional contracting qualifications for implementation, and when the general contractor subcontracts the part of the project, it should examine whether the subcontractor has the qualifications to contract the construction of the part of the project, and it subcontracts the part of the project to an individual who does not have the corresponding professional contracting qualifications for implementation. Because individuals do not have the corresponding professional qualifications to contract professional projects, they cannot meet the requirements of professional and technical personnel, technical equipment and related performance, etc., and the quality of the project is difficult to guarantee, which brings potential safety hazards to the project. At the same time, Company A has the risk of civil liability due to joint and several liability and the inability to protect its legitimate rights and interests due to project quality problems. Therefore, in engineering construction projects, we should seriously investigate and deal with the violations of laws and regulations of construction units and general contractors, and severely crack down on illegal acts such as contracting or subcontracting projects to units or individuals who do not have the corresponding qualifications, and contracting projects without qualifications, so as to better maintain the normal order of the construction market.
Case 3Administrative penalty case of collusive bidding in the supervision bid section of the turnover dormitory construction project
1. Basic facts of the case
In the bid opening activity of the supervision bid section of the turnover dormitory construction project, the bid evaluation experts found that the serial number of a Xinjiang international engineering consulting company and a construction supervision department in Shenzhen was the same, both of which were bfebfbff000906eb; The serial numbers of the hard disks are the same, both of which are 210108A00000520; The serial number of the computer motherboard is the same, which is CVTTV63CNWS20008O006R; The MAC address of the NIC is the same, which is 5cbaef44e695. According to Article 6 of the Measures for the Investigation and Punishment of Collusive Bidding and Fraud in Housing Foundation and Municipal Infrastructure Projects in Xinjiang Uygur Autonomous Region (Trial), "if the bidder has any of the following circumstances in the bidding process, it shall be deemed that the bidders collude with each other in bidding; If there is one or more identical information about the serial number of the pricing software encryption lock recorded in the XML standard interface file of the group price bill of quantities of different bidders, or there is one or more computer network card MAC addresses (if any), CPU serial numbers and hard disk serial numbers in the recorded hardware identification informationIt is determined that a Xinjiang international engineering consultant and a construction supervisor in Shenzhen colluded in bidding.
2. Basis and content of processing
According to Article 53 of the Tendering and Bidding Law of the People's Republic of China, "bidders collude with each other in bidding or with tenderers in collusive bidding..."A fine of between 5 and 10 thousandths of the amount of the winning project shall be imposed" and Article 67 of the Regulations for the Implementation of the Tendering and Bidding Law of the People's Republic of China, "bidders collude with each other in bidding or collude with the tenderer in bidding..."Punishment shall be imposed in accordance with the provisions of Article 53 of the Tendering and Bidding Law. If the bidder fails to win the bid, the amount of the fine for the unit shall be calculated in accordance with the proportion of the contract amount of the bidding project in accordance with the provisions of the Bidding and Bidding Law".Impose fines
3. Case analysis
This case is a case of collusion in bidding discovered through the electronic aided bid evaluation system since the competent authority of a certain region comprehensively promoted the electronic aided bid evaluation system, especially in the electronic bid evaluation system, the screening link of bid-rigging and collusion has been added, and the characteristic code identification and other contents of the bidder's electronic bidding documents are screened through the computer-aided screening system of bid-rigging and collusion, with reference to the Measures for the Investigation and Punishment of Collusive Bidding and Fraud in Housing Construction and Municipal Infrastructure Projects in Xinjiang Uygur Autonomous Region (Trial) According to the relevant provisions, the bid evaluation committee through the screening results of the evaluation and determine whether there is bid-rigging and collusion, which fully reflects that the electronic assisted bid evaluation technology is an effective measure to strengthen the supervision of bidding, breaking the previous deadlock of collusive bidding violations of laws and regulations, difficult to find, difficult to obtain evidence, difficult to enforce the law, but also indicates the comprehensive innovation and reform of bidding supervision, and the opening of new methods and new models of supervision. With the development of science and technology, the improvement of regulatory measures, and the innovation of regulatory means, some illegal acts will inevitably be hidden, and the soil on which they depend will be eradicated.
Case 4Administrative penalty case of falsification of qualification upgrade information of construction enterprises
1. Basic facts of the case
In the process of upgrading the third-level qualification of construction general contracting of construction enterprise qualification certificate (municipal public works) to level II of construction general contracting, the design units involved in the performance of the seven engineering construction projects declared by a construction unit are not the actual design units of the project, and there is an illegal act of providing false materials to apply for the qualification of construction enterprises.
2. Basis and content of processing
According to Article 78 of the Administrative Licensing Law of the People's Republic of China, "if the applicant for an administrative license conceals relevant information or provides false materials to apply for an administrative license, the administrative organ shall not accept it or refuse the administrative license, and give a warning..."and Article 35 of the "Regulations on the Administration of Construction Enterprise Qualifications", which stipulates that "if the applicant enterprise conceals the true situation or provides false materials to apply for the qualification of the construction enterprise, the qualification licensing authority shall not permit it and give a warning, and the applicant shall not apply for the qualification of the construction enterprise again within one year".The construction unit was given a warningIt is not allowed to apply for the qualification of a construction enterprise again within 1 yearCancel the second-level qualification for general contracting of construction (municipal public works).Penalty for downgrading to Level III qualification
3. Case analysis
When construction enterprises handle qualification declaration, upgrading and renewal, they mainly submit written materials. When engineering performance or technical personnel do not meet the qualification requirements, some enterprises will help them or ask intermediaries to help forge false materials to fill their own shortcomings. With the increasing development of paper counterfeiting technology, some false materials can almost be confused with the truth, so that some enterprises can be confused in the qualification declaration. In order to effectively crack down on the problem of fraud in qualification application materials, on the one hand, we should establish and improve the enterprise performance and personnel information platform to provide technical support and data support for strict qualification review, and on the other hand, we should severely crack down on the problem of fraud in qualification materials.
Case 5An administrative penalty case in which a design unit violates mandatory standards for design
1. Basic facts of the case
A fire protection renovation design project with an area of 341396 square meters, the cost is 280,000 yuan. During the inspection, the competent department found that the construction drawing design of the project was not carried out in accordance with the mandatory requirements of the fire protection technical standards.
2. Basis and content of processing
According to Article 59 of the Fire Protection Law of the People's Republic of China, "anyone who violates the provisions of this law and commits any of the following acts shall be ordered by the competent department of housing and urban-rural development to make corrections or stop construction, and shall be fined not less than 10,000 yuan but not more than 100,000 yuan..."(2) The architectural design unit does not carry out fire protection design in accordance with the mandatory requirements of fire protection technical standards"Relevant provisions on the design unit of the projectImpose fines
3. Case analysis
This case is a typical case of the design unit violating the mandatory standards for engineering construction and illegal design, and the content of the mandatory provisions of engineering construction is an industry standard that cannot be violated, and the responsible entities of all parties to the construction project must strictly implement it. For this case, the reasons for the violation are very clear, the management quality, professional level and practical operation ability of the management and related personnel of the design unit do not meet the requirements of the project, especially some enterprises from other provinces entering Xinjiang, with a higher qualification level to give priority to undertaking the survey and design tasks, but the actual technical personnel in Xinjiang do not match the bidding commitment personnel, and directly hire local personnel to engage in design and project on-site services, which cannot meet the requirements of project management and cannot carry out quality control of the design outcome documents. Local industry authorities should draw inferences from one case and urge survey and design units to carry out survey and design activities in accordance with laws and regulations to ensure the healthy development of the survey and design market in our district.
Case 6Case of administrative punishment for the main person in charge of a gas station who failed to perform his duties of safety production management
1. Basic facts of the case
When the competent department of the industry carried out safety production inspections, it was found that the main person in charge of a gas station did not organize and implement daily inspections and hidden danger investigation in accordance with the safety production rules and regulations and operating procedures of the unit, and there were no inspection materials and records, and there were hidden dangers of safety production accidents. The competent department of the industry immediately issued a rectification notice, requiring the rectification to be completed and reviewed within a time limit.
2. Basis and content of processing
According to the first paragraph of Article 94 of the "Work Safety Law of the People's Republic of China", "if the main person in charge of a production and business operation entity fails to perform the safety production management duties stipulated in this Law, it shall be ordered to make corrections within a time limit and shall be fined not less than 20,000 yuan but not more than 50,000 yuan; If the correction is not made within the time limit, a fine of not less than 50,000 yuan but not more than 100,000 yuan shall be imposed, and the production and business operation unit shall be ordered to suspend production and business for rectification"Relevant provisions, on the gas stationThe main person in charge carries out the fine
3. Case analysis
This case is a typical case in dealing with the management of gas safety production. Gas safety production management is faced with many sales outlets, wide coverage, low quality of sales management personnel, weak sense of responsibility, difficult supervision and other problems, in the daily supervision work, for the sales of gas outlets in accordance with the gas safety standards for strict control, from time to time to carry out inspection and rectification. The competent department of the industry publicized the handling of this case on the Internet, and used the case to explain the law and educate on the law, which attracted widespread attention and played a warning role for gas business enterprises, which strengthened the management of gas safety production and eliminated the occurrence of accidents from the root.
Case 7Cases of administrative punishment for unauthorized construction of special construction projects without fire protection design review
1. Basic facts of the case
A real estate development and construction of residential buildings and commercial, underground garage projects belong to special construction projects that should be subject to fire protection design review in accordance with the law, and construction starts without going through the fire protection design review procedures.
2. Basis and content of processing
According to Article 58 of the Fire Protection Law of the People's Republic of China, "if a construction project that shall be subject to fire protection design review in accordance with the law is not reviewed in accordance with the law or is unqualified, and the construction is carried out without authorization, the competent department of housing and urban-rural construction and the fire rescue agency shall order the construction to be stopped, the use shall be stopped, or the production and business shall be suspended in accordance with their respective powers, and a fine of not less than 30,000 yuan but not more than 300,000 yuan shall be imposed...""The relevant provisions,It was ordered to immediately stop the construction and fined the construction unit of the project.
3. Case analysis
The main reasons for such illegal acts: first, the construction unit is not very clear about what procedures to go through before the construction of special construction projects, and the construction drawings have not been reviewed for fire protection design after being reviewed by the drawing review agency; Second, individual construction permit issuing units issue construction permits under the premise that the construction unit fails to provide fire protection design drawings and technical information to meet the construction needs as required. Special construction projects shall not be issued construction permits without fire protection design review or unqualified review, and the construction permit approval process shall be strictly enforced, and the fire protection design review shall be regarded as a necessary condition for the issuance of construction permits.
Case 8Cases of administrative penalties for signing real estate brokerage service contracts without the signature of a real estate agent
1. Basic facts of the case
The "Housing Sale and Purchase Contract" signed between a real estate agent *** and the buyer does not have the signature of one real estate agent or two real estate agent assistants engaged in the business.
2. Basis and content of processing
According to Article 33 of the Measures for the Administration of Real Estate Brokerage, "in violation of these measures, any of the following acts shall be ordered by the local people's construction (real estate) department at or above the county level to make corrections within a time limit and recorded in the credit file; impose a fine of 10,000 yuan on real estate agents; A fine of not less than 10,000 yuan but not more than 30,000 yuan shall be imposed on real estate brokerage institutions:3) The real estate brokerage service contract is not signed by one real estate agent or two real estate agent assistants engaged in the business"The relevant provisions,It was ordered to make corrections within a time limit and fined the real estate agency.
3. Case analysis
In fact, if the brokerage agency does not sign the contract by a real estate agent or two real estate agent assistants engaged in the business, the act is already a violation of the "Real Estate Brokerage Management Measures". Brokers and associate brokers who have obtained the qualification certificate have certain professional qualities and master relevant legal knowledge, which can avoid the occurrence of real estate legal disputes to a large extent and protect the legitimate rights and interests of both parties to the housing transaction.
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