Contract Management and Claims Cases (2)

"Case 1 1" adopts fixed lump sum contract in a domestic project. According to the contract conditions, if the contractor finds any errors or anomalies in the construction drawing, he shall notify the owner's representative. It is stipulated in the technical specification that the fire water pipeline must be laid separately from the cable in terms of safety requirements; Fire water pipes and cables are placed in the pipe trench. The contractor shall quote and construct according to the drawings. After the completion of the project, the engineer refused to accept it, instructed the contractor to construct according to the requirements of the specification, re-laid the pipe trench, and refused to give any compensation to the contractor. The reason is:

(1) It is extremely unsafe to put two kinds of pipelines in a ditch, which violates the engineering specifications. In engineering, the general specification (that is, the description of this project) takes precedence over the drawings.

(2) Even if it is indicated in the construction drawing that two pipes are placed in the same trench, it is also a design error. But as an experienced contractor, you should be able to find this common-sense mistake. In addition, the contract stipulates that if the contractor finds any errors and anomalies in the construction drawing, he shall promptly notify the owner's representative. The contractor failed to comply with the contract. Of course, the engineer's handling is harsh and there is an act of shirking responsibility, because:

(1) In any case, the design responsibility shall be borne by the owner, and the drawing errors shall be borne by the owner.

② During the construction, the engineer has been "supervising". He should be able to find the problems in the contractor's construction and issue instructions to correct them in time.

③ When applying this principle, we should pay attention to the rationality and possibility of the contractor undertaking this responsibility. For example, when bidding, whether the contractor has a reasonable bidding period should be considered. If the bidding period is too short, this responsibility should not be borne by the contractor. There are also many cases of this treatment in foreign projects (see reference 2 1). Therefore, the problems, errors and inconsistencies found in the bidding documents, especially those where the construction drawings are inconsistent with the specifications, should be clarified to the owner before bidding to get a correct explanation, otherwise the contractor may be at a disadvantage.

Case 12: In the reinforced concrete frame structure project, there are steel component installation sub-projects. The reinforcement shall be provided by the owner and installed by the contractor. In the technical documents provided by the owner, only one arc is used to represent the reinforcement, and there is no detailed drawing or explanation. During the construction, the owner provided rebar with threads at both ends to the site, and the contractor accepted these rebar without any objection, and connected them with nuts and sub-rebar on the concrete frame. During the engineering inspection, the contractor did not put forward any additional requirements. However, when the whole project was almost completed, the contractor proposed that the original installation drawings were not clearly expressed, and that he had cost overruns due to the increased difficulty of the project and demanded a claim. After investigation, the court held that although the contract was vague about the types of structural steel bars, there was no doubt in this respect when the owner provided the steel bars and the contractor accepted them without objection. The contract has been interpreted unanimously because of the behavior of both parties, that is, the bar system provided by the owner meets the contract requirements. Therefore, the contractor's claim is invalid.

Case 13 Lubuge Water Diversion System Project, the owner is Lubuge Engineering Bureau of China Ministry of Water and Electricity, the contractor is Japanese Dacheng Construction Co., Ltd., and the supervision engineer is Australian Snow Mountain Company. In the course of the project, unfavorable natural conditions caused the increase of drainage facilities, which led to cost claims.

(1) Analysis of relevant contents of the contract. There are the following related sub-items in the bill of quantities: Item 3.07/ 1: "Provision and installation of specified minimum drainage capacity", as a total price item, the quotation is 42,245,547 yen and 32,832.5438+08 yuan; Item 3.07/3: "Providing and installing additional drainage capacity" is the total price item, and the quotation is 10926404 yen, 46 19.97 RMB. At the same time, in the technical specifications: S3.07

(2)(C) stipulates: "Since the underground water quantity is unknown during excavation, if the specified minimum drainage capacity is insufficient to eliminate water flow, the engineer will order the installation of additional drainage capacity at least equal to the specified drainage capacity. The cost of providing and installing additional drainage capacity will be paid according to the total price in Item 3.07/3 of the Bill of Quantities ".

(3) It is also stipulated in (c) that "the extra drainage capacity installed according to the engineer's instructions will be paid according to the actual capacity". Obviously, there are contradictions between the provisions in the above technical specifications. The normal drainage capacity stipulated in the contract is as follows: level tunnel and AB section: 1.5t/min, section C: 1.5t/min, section D: 1.5t/min, slope section and inclined shaft: 3.0t/min, totaling 7.5t/min. According to S3.07(2)(C), the additional drainage capacity is at least equal to. From May 1986 to the end of August 1986, the rainstorm continued. Because the diversion tunnel passes through faults and many caves, the underground water volume increases greatly, resulting in shutdown and equipment flooding. With the consent of the owner, the contractor urgently dispatches drainage facilities from Japan to increase the total drainage facilities of the project to 30.5 t/min (of which 4 t/min is used in other places and has been paid separately). 1986, 12, the contractor filed a claim for increasing drainage, 10/5, and the contractor formally filed a claim: the claim item is Japanese yen (RMB).

Loss of submerged equipment171687 72414.70 increase of drainage facilities +0292.67 total +05388+05486.

(3) Responsibility analysis

(1) The loss of mechanical equipment caused by the flood belongs to the contractor's own responsibility and will not be compensated.

It is true to add additional drainage facilities. Due to unforeseeable climatic conditions, the equipment supply was increased at the request of the owner.

(4) Cause analysis

Although the responsibility of adding drainage facilities is clearly analyzed, there are differences on compensation between the two sides. As item 3.07/3 of the work schedule is in contradiction with S3.07(2)(C) and S3.07(3)(C), there are different solutions according to different regulations:

① According to S3.07(2)(C), the extra drainage capacity is paid in the total price item in Bill of Quantities 3.07/3, and it is stipulated that "the extra drainage capacity is at least equal to the specified drainage capacity", so the extra drainage capacity can be greater than the specified drainage capacity and should not be paid separately.

② However, according to S3.07(3)(C) standard, extra drainage capacity should be paid according to actual capacity, that is, full compensation should be made.

(3) Due to the contradiction in the contract, if the interpretation is not contradictory due to the consideration of the interests of both parties to the contract, it is considered that Bill of Quantities 3.07/l has included the normal drainage capacity, and the quotation 3.07/3 has included the extra drainage capacity equal to the normal drainage capacity, and the excess part is compensated to the contractor according to S3.07(3)(C). In this way, each clause can be interpreted reasonably. Finally, after in-depth discussion, both parties unanimously agreed to adopt the above third scheme.

(5) Impact analysis. According to the contractor, the drainage capacity on which the quotation is based is only 1.5t/min for the flat tunnel and 3t/min for the gradual change section and inclined shaft. The other two working faces can use slopes for natural drainage. Therefore, the drainage capacity contained in the contract bill of quantities 3.07/l and 3.07/3 is 9.0t/min, that is, (1.5t 13t) × 2/min. The purpose put forward by the contractor in this way can not only increase the drainage capacity within the scope of compensation, but also increase the contract unit price of unit drainage capacity. However, the engineer thinks that the contractor should arrange drainage facilities for each working face as stipulated in the contract and quote accordingly. Therefore, the drainage capacity stipulated in the contract is 15t/min (the normal drainage capacity is 7.5t/min, which is the same as the additional drainage capacity). Within the scope of claim, that is, the drainage capacity of S3.07(3)(C) is: 30.5 ——15 =11.5t/min (7) Calculation of claim value. The contractor has two values in the quotation: 3.07/l is the normal drainage capacity, and the quotation is higher; However, 3.07/3, as extra capacity, is quoted at a lower price. The engineer thinks that the increase is extra drainage capacity, so it should be calculated according to the quotation of 3.07/3. The contractor explained the reason for the low quotation of 3.07/3 (it may be that extra drainage capacity is reserved and not necessarily needed, so it is not necessary to fully consider it in the quotation), and suggested to use the average value of the sum of the two quotations (3.07/l and 3.07/3) for calculation. This proposal was finally accepted by all parties. Then the unit price of unit drainage capacity stipulated in the contract is: yen: (42245547 ten10926404)/15 = 3544793 yen /(t/min).

Rmb: (32832.184619.97)/15 = 2496.5438+0 yuan/(ton/minute).

Then the compensation value is: yen: 3,544,793×11.5 = 407,655,438+065 yen: 2,496.5438+0×1.5 = 287,638+03.303.

5. Disambiguation

If there is no unified explanation after the above analysis, the following principles can be adopted:

(1) priority principle. A contract consists of a series of documents, for example, according to the definition of FIDIC contract, contract documents include contract agreement, bid-winning notice, tender, contract conditions, specifications, drawings, bill of quantities, etc. The essence also includes the change documents and new supplementary agreement after the contract is signed, and the supplementary agreement reached by both parties before the contract is signed. When there are contradictions and ambiguities between different documents, the principle of priority can be applied. Each contract has corresponding provisions on the priority order of contract documents.

(2) the principle of disadvantage to the drafters. Although the contract documents are determined by both parties through consultation, drafting the contract documents is often a right of the buyer (the owner and the general contractor), and the buyer can submit the documents according to his own requirements. According to the principle of balance of responsibilities and rights, he should bear corresponding responsibilities. If there is ambiguity in the contract, that is, there are two different interpretations of an expression, it can be considered that ambiguity is the mistake of the drafter or a trap deliberately set by him, and the unfavorable interpretation shall prevail. This is reasonable. China's contract law also has similar provisions.

Case 14 In a supply contract, the definition of payment terms is "cash on delivery". And are supplied in batches. During the execution of the contract, the supplier thinks that the contract is interpreted as "cash on delivery", that is, as long as the first batch of goods arrive, the buyer will pay in full, while the buyer thinks that the contract should be interpreted as "cash on delivery", that is, pay in full after the goods arrive. Literally, both explanations are acceptable. The two sides were at loggerheads and refused to give in. In the end, the court ruled that the contract was invalid and would not be implemented. In essence, this case can also be traced back to the drafter of the contract. When a supplier drafts a contract, it should be understood as "cash on delivery"; If it is a buyer's draft, it can be understood as "cash on delivery".

Case 15 In an international project, the engineer gave the contractor drawings, which were examined and signed by the engineer. However, some contents of this drawing violate the special specifications of this project (i.e. the project description). Halfway through the implementation, the engineer found this problem and asked the contractor to rework and construct according to the specifications. The contractor filed a rework claim with the engineer, but the engineer denied it. The contractor asked: If the drawings approved and promulgated by the engineer are different from the contents of the special contract specifications, can they be regarded as binding engineering changes approved by the engineer? A:

(1) In international projects, special specifications usually take precedence over drawings, and contractors are responsible for complying with contract specifications.

(2) If both parties agree, the drawings of engineering changes are binding. However, this unanimous agreement not only includes the approval of the drawings, but also includes the engineer's intention to change, that is, the engineer must clearly know that the changes have been made when issuing the drawings, and the contractor also clearly knows. If the engineer doesn't know that the changes have been made (only the drawings have been made), he has no intention to modify them for whatever reason, and the approval of the drawings has no influence on the contract changes.

(3) After receiving the drawings that are different from the specifications or have obvious errors, the contractor has the responsibility to submit the problems to the engineer before construction (see the analysis in front of this section). If the engineer confirms the drawing changes in writing, it will form a binding engineering change. In this case, the contractor did not check with the engineer, which does not constitute a binding engineering change. In view of the above reasons, the contractor has no claim.

Case 16 An international project adopts fixed lump sum contract. The contract stipulates that the owner should pay customs duties. The validity period of the claim stipulated in the contract is 10 day. The contractor's tender is accompanied by a list of building materials and equipment, which has been approved by the owner. In this project, the materials imported by the contractor greatly exceed the quantity listed in the schedule of the tender. When the contractor asked the owner to pay customs duties, the owner refused to pay more than part of the materials. In this regard, the contractor raised the following questions:

(1) Is there any reason for the owner to refuse to pay the customs duty on some materials?

(2) Is this part of the tariff that the contractor claims from the owner not limited by the validity period of the claim?

A: Excessive import of project materials may be caused by the following reasons:

(1) The list of building materials and equipment is inaccurate.

(2) The owner's instruction to change the project leads to the increase of engineering quantity and the increase of material consumption.

(3) Other reasons, such as rework caused by the contractor's construction mistakes, waste of materials in the construction process, or the contractor's attempt to import more materials, which will be treated or used in other projects after the construction is completed to obtain tariff benefits.

In view of the above situation, the analysis is as follows:

(1) Like the figures in the bill of quantities provided by the owner, the list of materials and equipment is an estimated value, not a fixed accurate value, so errors are allowed, and the owner cannot shirk his contractual responsibility for the errors.

(2) The increase in engineering quantity approved by the owner is effective and belongs to the project in the contract. For these materials, the terms stipulated in the contract for the owner to pay customs duties are also effective. Therefore, for the imported materials that need to be increased due to the increase of engineering quantity, the owner must pay the corresponding tariff.

(3) Other circumstances caused by the contractor's responsibility shall be borne by the contractor. For the materials purchased in excess, the owner has the right to recover the corresponding customs duties paid when the contractor finally handles them (such as selling them and using them in other projects). The claim is not limited by the validity period of the claim because it is not caused by the owner's breach of contract.

A project contract in case 17 stipulates that the contractor shall be responsible for purchasing imported materials, but the tariff of materials is not included in the contractor's material quotation and shall be paid by the owner. The contract does not stipulate the date for the owner to pay the customs duties, but only stipulates that the owner shall complete all customs clearance procedures within 30 days after receiving the arrival notice submitted by the contractor. Now, due to the late arrival of the materials purchased by the contractor, these materials are urgently needed in the project construction after arriving in Hong Kong. The contractor must pay the customs duties and complete the customs clearance procedures first, so as to obtain the materials as soon as possible and avoid on-site shutdown. Q: In this regard, can the contractor ask the owner to compensate for the customs duties? Is this kind of claim also limited by the validity period of the claim stipulated in the contract?

A: In this regard, if the owner delays the customs clearance procedures for more than 30 days, resulting in on-site shutdown, the contractor can regard it as an unforeseen event and claim for the construction period and expenses within the validity period of the claim stipulated in the contract. However, the contractor paid the customs duty in advance in order to get the materials as soon as possible, for which the contractor can claim the customs duty from the owner. Because according to international engineering practice, if the owner hinders the contractor from performing the contract correctly, or even if the owner has not breached the contract, under special circumstances, in order to ensure the realization of the overall goal of the project, the contractor has the responsibility and power to take measures to reduce losses. Because these measures of the contractor make the owner gain benefits or reduce losses, the owner shall compensate the contractor. In this case, in order to ensure the realization of the overall goal of the project, the contractor completed part of the contract responsibilities for the owner, and the owner should make full compensation. The owner's behavior does not constitute a breach of contract for the contractor, so the claim is not limited by the validity period of the claim stipulated in the contract.

Case 18: A domestic contracting company contracted a project abroad, and when the contract was signed, it was estimated that the project could make a profit of 300,000 US dollars. When the project started, it was found that some clauses in the contract were unfavorable, so it was estimated that it could be balanced, that is, it could break even; After several months of construction, it was found that the contract was very unfavorable and the estimated loss was several hundred thousand. When the construction period is in the middle and detailed accounting is carried out, it is a trap to find that the contract is extremely unfavorable. It is estimated that by the end of the project, the loss will be at least $6,543,800+million. To take measures, the loss is extremely heavy.

Case 19 An international project, according to the total construction period plan stipulated in the contract, the on-site concrete mixing should start on XX. As the contractor's concrete mixing equipment could not be transported to the site, the contractor decided to use commercial concrete, but the owner refused. But what kind of concrete is used is not clearly stipulated in the contract. As a last resort, the contractor had to continue to organize the equipment to enter the site, which led to the shutdown of the construction site, the delay of the construction period and the increase of expenses. The contractor made a claim for time limit and expenses. The Owner rejected the contractor's claim for the following two reasons:

(1) In the approved construction progress plan, it is determined that the contractor will mix the concrete on site, and the contractor shall abide by it.

(2) It is the contractor's fault that the mixing equipment cannot be transported to the construction site, and he has no right to claim compensation. Finally, submit the dispute to the mediator. The mediator thinks that commercial concrete can be used as long as it meets the quality standards stipulated in the contract, and it does not need the owner's approval, because the contract does not clearly stipulate that concrete must be mixed on site (the construction plan is not a contract document). Because by convention, the contractor is responsible for the method of implementing the project. He can choose a more economical and reasonable construction scheme without affecting or in order to better ensure the overall goal of the contract. The owner shall not interfere casually. On this premise, the owner's refusal to use commercial concrete by the contractor is a change order, and he can claim the construction period and expenses. However, the claim must be made within the validity period of the claim stipulated in the contract. Of course, the contractor can't ask the owner to compensate for any cost of using commercial concrete. Finally, the contractor was compensated for the construction period and expenses.

In a project of "Case 20", the owner proposed in the tender documents that the construction period was 24 months. In the tender, the contractor's schedule is also 24 months. After winning the bid, the contractor shall submit a detailed progress plan to the engineer, indicating that it can be completed in 18 months, and discuss the feasibility of 18 months. The engineer approved the contractor's plan. In the project, the project is shut down due to the owner's reasons (delay in design drawings, etc.). ), affecting the construction period. Although the actual total construction period is still less than 24 months, due to the binding nature of the1August construction period plan, the contractor still successfully claimed the construction period and the expenses related to the construction period.