Article 21 of the Measures for the Administration of Government Procurement of Cooperation Projects between Government and Social Capital stipulates that "social capital shall pay the deposit in non-cash forms such as checks, bills of exchange, promissory notes or letters of guarantee issued by financial institutions and guarantee institutions, and the amount of performance bond shall not exceed 65,438+00% of the total initial investment or asset appraisal value of PPP projects. For service-oriented PPP projects with no fixed assets investment or small investment, the amount of performance bond shall not exceed the average service income of six months. "
On the surface, the above provisions seem to require social capital to pay a performance bond, but in fact, they cannot be directly applied when applicable, for the following reasons:
First, the performance bond in the aforementioned laws and regulations is set from the perspective of bidding and procurement. We know that the PPP model is very different from the traditional model, that is, from the perspective of the whole life cycle, the performance bond has different meanings at different stages. Performance bond in construction period is performance bond in construction period and operation guarantee in operation period. It is inaccurate to generalize the performance bond in general.
Second, the intrinsic meaning of performance bond is the guarantee of contract performance. According to the provisions and actual operation of the Notice on Printing and Distributing the Operational Guidelines for the Cooperation Mode of Government and Social Capital (for Trial Implementation), "If a PPP project needs to set up a special project company, after the project company is established, the project company will re-sign the PPP project contract with the project implementing agency, or sign a supplementary contract to inherit the PPP project contract". A large number of projects will set up project companies, and social capital and project companies are independent legal persons. At this time, the main body of performance is the project company, and social capital provides performance guarantee. Although the law does not prohibit this operation, we believe that the logical relationship is not clear. The reason for establishing the project company is to design a limited recourse system based on capital contribution, and then let social capital provide performance guarantee, and the institutional basis of limited recourse is broken.
Third, increase the burden of social capital. We find that when designing some PPP projects, social capital is required to submit performance bond after winning the bid, and then the guarantee system consisting of performance bond, operation and maintenance bond and handover maintenance bond is applied, which is actually repeated guarantee and increases the burden of social capital. For hundreds of millions or even hundreds of millions of PPP projects, the deposit may exceed several hundred million, which will occupy additional resources and funds of social capital.
Therefore, we think that we should apply for performance bond according to the actual situation of the project and establish a guarantee system. The connection between letter of guarantee and deposit should be scientific and reasonable, and it should not be neglected.