The General Office of the State Council forwarded the notice of the National Development and Reform
国办函〔2023〕115号
People's governments of provinces, autonomous regions and municipalities directly under the Central Government, ministries and commissions under The State Council:
The Guiding Opinions of the National Development and Reform Commission and the Ministry of Finance on Standardizing the Implementation of the New Mechanism for Cooperation Between the Government and Private Capital have been approved by The State Council and are hereby forwarded to you for earnest implementation.
General Office of the State Council
November 3, 2023
(This article is released to the public)
On regulating the implementation of cooperation between the government and private capital
Instructions for the new machine
Ministry of Finance, National Development and Reform Commission
The implementation of public-private partnership (PPP) for nearly ten years has played a role in improving public services and stimulating effective investment to a certain extent, but there are also some problems that need to be solved in practice. In order to implement the decisions and arrangements of the Party Central Committee and The State Council, further deepen the reform of the infrastructure investment and financing system, and effectively stimulate the vitality of private investment, the following guidelines are hereby put forward on the standardized implementation of the new mechanism for cooperation between the government and private capital (referred to as the new mechanism).
First, accurately grasp the overall requirements of the new mechanism
We will expand the space for private investment, resolutely curb new hidden local government debt, improve the construction and operation of infrastructure and public utility projects, and ensure standardized development and transparent operation.
(1) Focus on user paid projects. Government and social capital cooperation projects should focus on user fee projects, clear fee channels and methods, project operating income can cover the construction investment and operating costs, have a certain return on investment, and do not add additional local fiscal future expenditure responsibilities due to the adoption of government and social capital cooperation models. The government may, on the premise of strictly preventing new hidden debts of local governments and complying with laws and regulations and relevant policies, provide government investment support for user payment projects during the construction period in accordance with the principle of equal treatment; Government payment can only subsidize operation according to regulations, and cannot subsidize construction costs. In addition, financial funds shall not be used to cover project construction and operating costs through any means such as feasibility gap subsidies, promised minimum return rates, availability fees, etc.
(2) All adopt the franchise mode. The cooperation between the government and social capital shall be implemented in a franchise mode. According to the actual situation of the project, Specific implementation methods such as build-operate-transfer (BOT), transfer-operate-transfer (TOT), rebuild-operate-transfer (ROT), build-own-operate-transfer (BOOT), design-Build-finance-operate-transfer (DBFOT) should be adopted reasonably, and the ownership of assets during construction and operation should be clearly stipulated in the contract. Clearly define the rights, responsibilities and interests of all parties.
3. Maintaining a sound grasp of key areas Cooperation between the government and private capital should be limited to projects with operational benefits, mainly including transportation projects such as roads, railways, civil aviation infrastructure and transportation hubs; logistics hubs and logistics parks; urban water supply, gas supply, heat supply, parking lots and other municipal projects; and ecological protection and environmental governance projects such as urban sewage and garbage collection, treatment and resource utilization. Water conservancy projects with power generation functions; social projects such as sports and tourism public services; new infrastructure projects such as smart cities, smart transportation, and smart agriculture; urban renewal, comprehensive transportation hub renovation, and other projects that combine revitalization and expansion.
(4) Giving priority to the participation of private enterprises. It is necessary to adhere to the original intention and return to the source, encourage private enterprises to participate in the new construction (including reconstruction and expansion) projects of cooperation between the government and social capital to the maximum extent, formulate the "List of new franchise construction (including reconstruction and expansion) projects supporting private enterprises to participate (2023 version)" (hereinafter referred to as the list, see the annex) and dynamically adjust. Projects with high marketization degree and weak public attribute should be wholly owned or controlled by private enterprises; For projects related to the national economy and people's livelihood and with strong public attributes, the equity ratio of private enterprises shall not be less than 35% in principle; A small number of projects involving national security, strong public attributes and natural monopoly attributes should actively create conditions and support private enterprises to participate. Private enterprises can be actively encouraged to participate in public-private capital cooperation projects outside the areas listed in the list. The participation of foreign-invested enterprises in government and social capital cooperation projects shall be carried out in accordance with the relevant requirements of foreign investment administration and with reference to the above provisions.
(5) Clear division of management responsibilities. The National Development and Reform Commission should take the lead in promoting the franchise model and effectively strengthen policy guidance. Local people's governments at all levels should earnestly assume the main responsibility and standardize and promote franchise projects within the scope of the government's power at the same level. Local people's governments at all levels may, in accordance with law and regulations, authorize relevant industry departments and public institutions to act as franchise project implementation agencies (hereinafter referred to as project implementation agencies) to be responsible for the preparation of franchise plans, the selection of franchise operators, the signing of franchise agreements, the implementation of project supervision, and the transfer and receipt of cooperation upon expiration. Local development and reform departments at all levels should play a comprehensive and coordinating role, strictly check the relevant contents of the project franchise plan, and perform the duties of project approval, approval or filing in accordance with the law and regulations. Financial departments at all levels should strictly implement the budget management system, strengthen the management of local government debt, strengthen financial and accounting oversight, and strictly enforce financial discipline.
6. Prudently implementing the new mechanism. Grasp the intensity and pace of work, the projects that have not completed the bidding and procurement procedures before the liquidation and verification of government and social capital cooperation projects in February 2023, as well as the newly implemented government and social capital cooperation projects shall be implemented in accordance with the new mechanism stipulated in these Guidelines. The Notice of The General Office of the State Council forwarding the Guiding Opinions of the Development and Reform Commission of the Ministry of Finance and the People's Bank on Promoting the Model of Cooperation between the Government and Private Capital in the Field of Public Services issued in May 2015 will no longer be implemented (Guochangfa (2015) No. 42).
2. Promoting construction and implementation in a standardized manner
(7) Strictly examine the franchise plan. For the projects to be implemented in the franchise mode, the project implementation agency shall take the lead in preparing the franchise plan with reference to the feasibility study report preparation specifications, and in accordance with the approval authority and requirements of government investment projects, the relevant parties shall perform the audit procedures to reasonably control the content and scale of the project construction and clarify the project output (service) plan. When reviewing the franchise plan, it is necessary to carry out the feasibility demonstration of franchise mode simultaneously, and carefully compare and demonstrate whether the project is suitable for adopting franchise mode. If necessary, professional consulting institutions can be commissioned to evaluate and improve the quality of feasibility demonstration.
(8) Fair selection of franchisees. The project implementing agency shall, in accordance with the approved franchise plan, select the franchise operator (including the franchise consortium, the same below) through open competition in accordance with the law and regulations. Project operation plan, unit price and franchise term should be taken as important evaluation criteria for selecting franchisees, and great attention should be paid to their project management experience, professional operation ability, enterprise comprehensive strength and credit rating status. The selected franchise operator and its investment, financing and construction responsibilities shall not be adjusted in principle, and those that need to be adjusted shall re-perform the franchise selection procedure. In accordance with relevant state regulations and project construction investment, operating costs, investment recovery period, reasonably determine the franchise period, and fully protect the legitimate rights and interests of franchise operators. The franchise term shall not exceed 40 years in principle, and the franchise project with large investment scale and long return cycle may be appropriately extended according to the actual situation, except as otherwise provided by laws and regulations.
(9) Standardize the signing of franchise agreements. The project implementing agency and the franchisee shall sign the franchise agreement on the basis of equal legal status and equal rights and obligations. Where a project company needs to be established, the project implementing agency shall sign an agreement with the franchise operator, stipulating that the project company shall be established within the prescribed time limit, and the franchise agreement shall be signed with the project company. The franchise agreement shall specify the scope of project implementation, quality and standard of output (service), method of obtaining investment income, project risk management and control, alteration of the agreement, franchise term and other contents, and stipulate the rights, obligations and responsibilities of both parties.
(10) Strictly implement investment management procedures. For the franchise project that the government provides investment support by means of capital injection, it shall go through the examination and approval procedures in accordance with the relevant provisions of the Regulations on Government Investment; For projects invested separately by social capital parties, the approval or filing procedures shall be performed in accordance with the relevant provisions of the Regulations on the Administration of the Approval and Filing of Enterprise Investment Projects. Standardize the implementation of project adjustment procedures, complete the approval, approval or record of the project, such as change of construction site, adjustment of main construction content, adjustment of construction standards and other major circumstances, should be reported to the original approval and approval authorities to re-perform the project review procedures, if necessary, should re-carry out the feasibility of the franchise model and franchise program review work. After the franchise project legal person is determined, if it is inconsistent with the project legal person in the previous approval, land use, planning and other procedures, the project legal person change procedures shall be handled according to law, and the project implementing agency shall provide necessary support and convenience.
(11) Project construction implementation management. The franchise operator shall do deep and solid preliminary work of the project, optimize the project construction plan in strict accordance with the relevant provisions, rationally arrange the construction period, effectively control the cost, ensure the quality of the project, and make preparations for operation. For projects with complex geological conditions, large construction risks, and difficulties in maintenance and maintenance, survey and construction design should be improved, construction risk control should be strengthened, and projects should be prevented from ending. After the completion of the project, the completion acceptance and special acceptance shall be organized in a timely manner in accordance with the law and regulations. The project that needs trial operation or trial operation shall meet the corresponding requirements and obtain the trial operation or trial operation license before it is put into trial operation or trial operation.
Third, effectively strengthen operational oversight
(12) Conducting regular project operation evaluation. The project implementing agency shall, together with relevant parties, monitor and analyze the operation of the project, carry out operational evaluation, assess potential risks, establish a restraint mechanism, and effectively guarantee the quality and efficiency of public goods and public services. Project implementation agencies should take public opinions as an important part of project monitoring analysis and operational evaluation, strengthen public supervision, and carry out performance evaluation in accordance with relevant regulations.
(13) punish violations of laws and regulations and dishonesty. If the franchisee violates laws and regulations and national mandatory standards, seriously endangers public interests, causes major quality, safety accidents or environmental emergencies, etc., the relevant party shall order rectification within a time limit and be punished according to law and regulations. If the public goods and public services provided do not meet the standards stipulated in the franchise agreement, the franchise operator shall bear the liability for breach of contract in accordance with the agreement. In accordance with the law and regulations, the faithless information of the relevant parties of the project will be included in the national credit information sharing platform.
(14) Standardizing the change of franchise agreement and project transfer. During the validity period of the franchise agreement, if it is necessary to change the content of the agreement, the parties to the agreement shall sign a supplementary agreement on the basis of consensus through consultation. If the franchise term expires or is terminated in advance, the transfer or withdrawal work shall be done according to the agreement and laws and regulations, and it is strictly prohibited to convert the franchise into a disguised debt through build-to-transfer (BT) mode on the grounds of early termination; If it intends to continue to adopt the franchise mode, it shall re-select the franchise operator in accordance with the provisions, and the original franchise operator may be preferred under the same conditions. If the franchise operator needs to be re-selected for reasons such as reconstruction and expansion within the franchise term, the original franchise operator may be preferred under the same conditions. All kinds of disputes arising from the franchise agreement are encouraged to be settled through friendly negotiation. If necessary, according to the nature of the disputes, apply for arbitration, apply for administrative reconsideration or file administrative or civil lawsuits in accordance with the law and regulations to properly handle and resolve them.
(15) Establish a regular information disclosure mechanism. Project implementation agencies shall disclose non-confidential information such as project construction content, franchise bidding results, franchise agreement main content, public goods and public service standards, and operation assessment results to the public in a timely manner, relying on the national online approval and supervision platform for investment projects. The franchisee shall disclose the quarterly operation of the project, audited annual financial statements and other information to the public through appropriate means.
Fourth, strengthen policy support
16. Strengthening organization and implementation. All regions should consolidate the main responsibilities, improve the working mechanism, and carefully organize and implement. All relevant departments should strengthen coordination, clarify policies and regulations, and strengthen the implementation of supervision. The National Development and Reform Commission shall formulate the outline of the franchise program, the model of the franchise agreement and the implementation rules, guide all regions to implement the government and social capital cooperation projects in accordance with the law and compliance, in a steady and orderly manner according to the requirements of the new mechanism, and work with relevant parties to timely revise and improve the relevant system documents of franchise operation, and create a good institutional environment.
(17) Ensure factors of production and provide financing support. Support the use of underground space for development and construction, and improve the efficiency of land use, without changing the in-situ type and use status of the project. We will support the rational adjustment of land planning uses and development intensity in accordance with laws and regulations, and promote the transformation and transformation of original assets through the franchise model to improve the efficiency of asset utilization. Explore the establishment of state-owned construction land use rights at different levels, and support projects to speed up the preliminary procedures in accordance with the law. Financial institutions are encouraged to provide financing support for franchise projects by means of expected income pledge in accordance with the principle of controllable risks and commercial sustainability. Actively support eligible franchise projects to issue real estate investment trusts (REITs) in infrastructure.
(18) Supporting innovative project implementation methods. Franchisees are encouraged to reduce construction and operation costs, improve investment returns, and promote better implementation of government-private capital cooperation projects through technological innovation, management innovation and business model innovation. Under the premise of ensuring project quality and output (service) effect, the additional benefits obtained by the franchisor through strengthening management, reducing costs, improving efficiency and actively innovating are mainly owned by the franchisor. Qualified state-owned enterprises are encouraged to participate in the revitalization of stock assets through the franchising model and form a virtuous cycle of investment.
Attachment: List of new franchise projects (including reconstruction and expansion) supporting private enterprise participation (2023 version)
attachments
Support the participation of private enterprises in the new franchise
(including reconstruction and expansion) project list
(2023 edition)
(1) Projects that should be wholly owned or controlled by private enterprises
(1) Environmental protection
1. Waste solid waste treatment and waste incineration power generation projects
(2) The municipal sector
2. Park infrastructure projects
3. Public parking lot project
(3) Logistics
4. Logistics hub and logistics park project
(4) Agriculture and forestry
5. Agricultural waste resource utilization project
6. Tourism agriculture, leisure agriculture infrastructure projects
7. Forestry ecological project
(5) Social field
8. Sports
9. Tourism public service projects
(2) Projects in which the equity ratio of private enterprises is not less than 35% in principle
(1) Environmental protection
10. Sewage treatment projects
11. Sewage network project
(2) The municipal sector
12. Urban water supply, gas supply, heat supply projects
(3) The field of transportation
13. Intercity railway, resource development railway and branch railway, commercial and extension business projects of railway passenger and cargo transport
14. Toll road projects (excluding toll road projects with large investment scale and high construction difficulty)
15. Low volume rail transit project
(4) Logistics
16. Airport cargo handling facility project
17. National logistics hub, national backbone cold chain logistics base project
(5) Water conservancy
18. Small water projects with power generation functions
6. New infrastructure
国务院办公厅转发国家发展改革委、财政部《关于规范实施政府和社会资本合作新机制的指导意见》的通知
|
|