【 Weak current College 】 claim knowledge manual (2)

Section III construction claims cost analysis

First, the types of construction claims costs and its composition

Construction claims costs, the contractor under the terms of the construction contract to the contractor constructer requests should be outside of the contract price. Such costs, neither the contractor additional income or expenditure constructer of unnecessary costs, it is stated in the contract for construction contract signed with impossible to determine when, by letting people take certain risk factors that lead to results.

In the construction phase, the factors caused by construction claims are varied, each specific claims in the event of cost components are not the same, however, the costs in accordance with the cause of the claim form features can be divided into engineering construction increased costs, delays, losses or engineer constructer default loss costs, suspension and termination of contract damages, national policies, laws and regulations change fees, etc.

(A) the quantities increase fee

Increase of quantity, is due to the influence of certain factors, the construction of the actual quantities exceed the original contract or the amount of engineering drawings and construction claims expenses occurred. Construction has caused increase of quantity of common scenarios tend to change with the design, engineer, instruction, unpredictability and other obstacles.

1, design changes, additional work arising from the

Construction process design change, whether it is the perfect design changes, or modifications of design changes are likely to lead to an increase in quantity.

2, engineers instruction causes project to increase the

Project construction, the engineer in construction contract to the extent you can achieve increased quantities constructer. As a project engineer of the directive in the reception room, increased suspended ceiling, curtains Kit, wood wainscots and heating cover, etc.

3, unpredictability obstacles caused by the increase of quantity

Construction of unpredictability disorders often leads to increased quantities such as increasing the amount of earthwork filling, increase the amount of concrete.

Project number increased fee is determined by the confirmation increase of direct costs (labor, materials, mechanical royalties), overhead and other costs, in accordance with the construction contract price established principles, or in accordance with the contractual provisions stipulated in the approach to calculate.

(2) construction delays losses

Construction delay damages, refers to non-contractor reasons caused by the construction delay event to actual loss caused by the contractor and construction claims costs. The claims cost considerations are often:

(1) the contract, the engineer or and letting people directly related to the third party arising out of the delay;

(2) the unpredictability obstacles caused by a delay in processing;

(3) exception bad climatic conditions caused by the delay;

(4) special social conditions caused by the delay.

From the reasons of the contractor's actual losses, and increased costs of quantity is an entirely different situation, its cost components is the following combinations:

(1) workers laid off losses or need other temporary transfer out of the field of engineering time and again recall costs.

(2) construction machinery laid-up fees: when the contractor when using leased mechanical means machinery leasing; when the contractor use of machinery and equipment is idle when it refers to costs or temporary transfer to other works of transfer and second entrance fee.

(3) material losses: including easy loss material due to construction delays and loss of the intensified; cement expired due to delays; materials transportation in other sites, transport and handling, etc.

(4) the material price adjustment. Subject to market price changes, due to construction delays forced the postponement of the contractor's purchase of materials, when the delay before and after the material clearly increase the price, the contractor had to pay more than schedule instances increased costs.

(5) exception harsh climatic conditions, special social conditions have finished engineering damage or quality does not meet the eligibility criteria at the time of disposal charges, construction charges again.

(3) accelerate the construction costs

Accelerated construction costs, refers to non-contractor's reasons for the delay, duration of contractor engineers instruction to accelerate the construction of the normal progress status by completing an equal number of engineering construction costs and the costs of construction claims. Typically, accelerated construction fee consists of the following circumstances:

(1) the ratio of fixed standard wages higher wage system, such as multiple bonuses, overtime, and so on.

(2) is equipped with more than the normal progress of the human resources of the workforce, such as how to speed up construction labourer; many skilled workers; arranged by a group to two or even three shifts; to increase the number of workers in the purchase of tools, appliances, increase service personnel, additional temporary facilities.

(3) construction machinery and equipment configurations, turnover material multiplied. Such as increased concrete mixer, increase vertical lifting equipment; is faster because of the construction progress, reinforced concrete structures of support and the template will increase turnaround times, the amount invested.

(4) the use of advanced price high construction method. Such as reinforced concrete projects, the use of commodity concrete; aerial work using pumping concrete machinery, etc.

(5) the material supply does not meet the requirements for accelerated construction workers to be workers or occurred at purchase materials.

(6) accelerate the construction of various types of cross-interference increased construction costs, etc.

The accelerated construction costs, because different projects vary or even be accelerated effects are not obvious, but accelerated construction costs have increased significantly.

(4) the constructer or engineer for breach of contract damages

Constructer or engineer for breach of contract damages, refers to the construction contract, due to the contract, or breach of contract, the engineerFor the actual loss caused by the contractor and construction claims costs. Constructer or engineer for breach of contract damages in engineering practice often occur, but its cost components is more complex, you should analyze specific circumstances.

1¡ ¢ constructer deferred payment

Letting people who for some reason you cannot press the terms of the contract on time payment to the contractor works of non-compliance will lead to the contractor the amount of the loss of interest, leading to the contractor the amount cannot be used for construction preparation and other losses.

2¡ ¢ constructer or engineers work errors

Constructer or engineer in the exercise of powers conferred by the contract, due to operational capacity, work experience and other reasons, often not properly correct engineering problems cannot achieve projects requirements, are unconscious draconian censorship, etc. Unintentional but really on the contractor's normal construction causing interference, such mistakes and will undoubtedly cause some damage to the contractor. If the contractor has carried out unnecessary rework; unnecessary multiple pause; interference caused productivity significantly reduce; increase unnecessary processes and utensils; update a material or construction equipment, etc.

3. contract to have finished engineering modifications

The contractor in accordance with the contract of construction drawing for construction, letting people have completed part also proposed to modify the request, this stage of the project of renovation is frequent, and this change will generally increase the cost of construction, therefore.

(5) national policies, laws and regulations change fee

Countries in building management policies, regulatory changes, or new policies, rules and regulations promulgated after construction activities often yields cost impact, construction costs will change, the impact, Contracting Parties must be unconditional execution, construction costs must make the appropriate adjustments, and construction claims it is in national policies, laws and changes in circumstances, adjustment of the associated costs of commonly used methods.

Second, the cost of construction claims determination principles

Construction claims in contract disputes, parties generally reflected in "the claim" and "claim costs are reasonable," two issues. Engineering practice, on the "claim costs are reasonable," finds difficulty is considerably higher than on "the claim" finds difficulty.

(A) claims costs should be in the contract.

(Ii) the cost of claims should be made to the contractor's actual damages reparation.

According to the law and the provisions of the construction contract, the contractor in performing the contract, for reasons beyond its actual loss or additional expenses to letting people claim, the contractor's right to protect its own interests.

The fourth section construction claims processing

I. construction claims procedures

(1) the claim incident, within 28 days after the issue of the engineer; claim notice

(2) issue a notice of intention to claim 28 days after, the engineers propose to extend the duration and/or compensation for economic loss claims report and related information;

(3) on receipt of the contractor to the engineer's report and related information, from 28 days to answer, or ask the contractor further supplementary claim and evidence;

(4) the contractor to the engineer on receipt of the report and related information within 28 days of unanswered or no further requirements on the contractor, as the claim is approved;

(5) when the claims on a continuous basis, the contractor shall issue a claim to the engineer in stages, in claims within 28 days after the end of the engineers sent to claim information and final report, the reply and (3), (4) the same.

II. construction claims notice and claims report

(A) notice of intention to claim

Claim notice there is no uniform requirements, consider the following content:

(1) the claim incident, the time, place, or engineering parts;

(2) claims in the event the parties or other persons;

(3) the claim incident, the nature of the cause and should specifically state is not the responsibility of the contractor;

(4) the contractor to claim incident, in particular, shall indicate to the contractor for the development of control events, reduction of losses on the action taken;

(5) specify the incident will enable the contractor to produce extra financial expenditure or other adverse effects;

(6) a claim, stating the terms of the contract.

(Ii) claims report

Report, the contractor submitted requirements provide a constructer economic compensation and (or) of extended duration of important files. Report claims processing of the entire process plays an important role. Report typically includes the following five main elements:

(1) of this title;

(2) claims event description;

(3) the grounds and basis of claims;

(4) the calculation of the value of claims and claims;

(5) claims data.

Preparation of the report should pay special attention to the following:

(1) claims the title of the report should be can't accurately summarize the central element of the claim;

(2) claims of the narrative to accurate, should not have subjective arbitrariness, indicating the time the event occurred, the project site, cause, effect on the scope, duration, and the measures taken by the contractor;

(3) the grounds for the claim and the grounds, to clear a pursuant to a contract, XX minutes to prove and legitimate claims of the parties;

(4) claims to be accurate, calculated on the basis,Calculation, calculation procedures to reasonably correct;

(5) that information should be informative, full, can effectively support or proof of claim, the claim incident, the value of the claim;

(6) claims report words clearly, cannot appear "probably," "approximately," "may," and so ambiguous words.

III. construction claims evidence

(A) the importance of collecting claims evidence

Claims evidence is relevant to claim one of the success of important documents, engineering practice, the contractor even seize the construction contract in the claims, but if the evidence in the absence of claims or insufficient evidence, its claims are often difficult to succeed or be greatly diminished. If a contractor takes out of mistakes, claims evidence to contradict, cannot stand each other's puzzle and questioned, not only does not promote the success of the claim, it will be each other as the counter claim of evidence on the issue of their claim at a serious disadvantage. Therefore, collecting valid claims evidence is doing well in claims management.

(Ii) the validity of claims evidence

1, authenticity,

Claims evidence must be produced in the construction process of true information, stand each other. As a result of claims in the performance of a construction contract, information gathered by the Contracting Parties should exist. Even if a record does not exist details clearly, in consultation with each other too should seek consensus. Self-complementary self-correction or false evidence is unprofessional, and it is not allowed by law.

2. comprehensive

The comprehensive nature of the alleged claims of evidence, is that the evidence should be able to explain the entire contents of the claim incident. Claims, evidence does not only happen because of evidence and no lasting effects of evidence or evidence from being disorderly, evidence is ambiguous. As such, the engineers are often taken to report requires supplementary evidence. Not only will delay the settlement of the claim will be made to the contractor in its claim in a disadvantaged position of passive.

3. legal effect

Claims evidence must have legal effects, particularly in the contracting parties disagree, the dispute, be submitted to arbitration or litigation is more to do this. Legal effect of the evidence is usually:

(1) must be a written document, then all verbal commitments or verbal agreements do not have the force of law.

(2) where a contract change agreement reached between the parties, the minutes are signed by representatives of both parties must have. Unilateral amendment of the contract, the proposed do not have the force of law.

(3) the evidence must comply with the provisions of national law. If the parties by agreement, the Protocol change, minutes of key content does not conform to the provisions of national law, even if both parties signature recognition, nor have the force of law.

(3) the contents of the claims evidence

Claims evidence generally include the following:

(1) bid documents and attachments;

(2) the engineer approved construction organization plan documents;

(3) contract file and change the file, various minutes of meetings;

(4) construction positioning on line acceptance certificate, Foundation ditch records, solder on the record, axis check records, backfill test records, material test reports, concealed works acceptance records, equipment acceptance record, water and fire tests and pressure test records, etc.;

(5) Earth excavation before the scene situation, concealed engineering covers the situation, before the landlord liability resulting rework, force majeure caused damage to the works of engineering;

(6) records including weather, construction, equipment and usage, progress, quality, safety, engineering, special events, in water outage time, site temporary changes, Conference and participants, material equipment at the scene and check the situation, not the right to rectify, rework, engineering, construction of the damaged log;

(7) can prove that a certain event time, responsibility, can be used to evaluate subject on a particular event ideas and attitudes of correspondence and correspondence;

(8) including temperature, humidity, rainfall, wind, wind, storm, hail, and so on accurate and reliable weather information of abnormal weather;

(9) including subsequent modifications to the design drawings, design drawings, design selection criteria in the design, the Atlas, engineering drawings and engineering geological exploration reports, etc.;

(10) records the construction of underground obstacle processing, engineering materials for local size or change, increase or decrease the content of a particular project works with records that prove the constructer of precincts, hydroelectric power, leveling point, construction jobs, time-limited, construction of roads, and other content; construction notification

(11) construction materials and equipment purchasing, ordering, shipping, storage, pressure port pressure points on the voucher;

(12) reflect the material price, shipping costs increase, labor standards, the interest rate increases, additional related taxation and other national laws, regulations, policy files.

Fourth, the engineers on the report of the review

(A) review the purpose

Engineers on the report reviews the contractor claims by checking facts, blame after approval of the legitimate interests of the compensation, it is not reasonable claim or claims of unreasonable part give negative or corrected.

(Ii) claims authenticity of review content

1. claim incidents by time, duration, end time, and continuous time.

2. claim incidents of reasons, including reasons why direct and indirect.

3. claim incidents on the construction of the scope and extent of the impact. If the water supply, power outages, will lead to the construction of, but not absolutely impact。 Such claims event facts often exaggerated, reviewers should have occurred over the event's actual information seriously.

(3) claims responsibility for the review of the content

1. the contractor shall bear responsibility or part of the event.

2. construction contracts are clear contractor should bear such risk or letting people do not take such risks.

3, the Contracting Parties shared responsibility in the event of losses arising from the construction contract in proportion to the number in the constructer would you also like to take a certain amount of loss to the contractor.

(4) the report of the review of the content of contract

1. claims based on the terms of the contract, the engineer of the directive and the relevant meeting minutes, notification etc is appropriate and accurate.

2. the contractor whether or not to use the contract vulnerability of conflicting terms and conditions.

3, the Contracting Parties to the person on the basis of the terms of the contract notice, orders, and so understand the inconsistency exists.

(5) claims costs review content

1, claims report, claim compensation costs should the constructer compensation or part of the compensation.

2, claims costs, the original data source is correct.

3, claims costs calculation is in accordance with the relevant project budget documents.

(6) the requirements for the duration of the review content extension

1. delay of work is in the critical line network plan.

2, delay time is longer than the task's total slack.

(7) claims review questions

1, agents should stand at the fair stand on objective analysis and assessment of the claim. Should the contractor when the antithesis to review set checkpoints to suppress or deny its compensation.

2. agents should go deep into reality, research, and never can still not find out the truth of the blind.

3. claims review process should focus on the overall situation, for more complex and difficult to quantify the problem should be conducive to mutual cooperation and project development is the principle, active and contractor contact for consultation.

V. construction claims solutions

Construction claims settlement is more ways of friendly consultations, you can also ask people to apply for mediation, arbitration or litigation. What specific ways to tackle the problem of construction claims, is entirely up to the Contracting Parties of the actual behavior of the decision, of course, involves a number of prerequisites.

(A) the parties do not resolve their differences

No differences between solve, refers to the constructer or engineer after reviewing the claim report fully agree with the contractor's claim, the claim of non-Contracting Parties. Engineering, construction claims, the contracting parties without differences resolved condition:

(1) claims involving the issue of a single, accountable;

(2) the construction of the terms of the contract or agreement provides for such rights and claims in the event of the basis for calculation;

(3) the Contracting Parties in the event of more consistent, particularly in terms of liability and data; no different views

(4) the claim is based, complete and accurate information on the evidence;

(5) the claim value is relatively small;

(6) the contractor's claim for calculation of seeking truth from facts, not overestimate the risk calculation;

(7) the Contracting Parties in the construction contract in mutual trust, cooperation, compared to a better;

(8) the contractor in the incident, the proactive efforts to reduce losses, and claims does not calculate the portion of the workload;

(Ii) the parties amicably

Both parties amicably, the constructer or engineer after a review of the report, and do not fully agree with the contractor's claims, for differences between the two sides through friendly consultations reach claims solutions. Engineering, construction claims Contracting Parties amicably conditions are:

(1) the Contracting Parties on the claim incident, but on impact analysis views;

(2) the contract the contractor who recognized the power of claims, but considered that all the responsibilities borne by letting people have anomalies;

(3) the contract that the contractor's claims evidence is credible, but letting people still have reason to not fully by the contractor's claim for compensation;

(4) the constructer on claims data analysis finds that the amount claimed is not enough accurate, high total;

(5) the Contracting Parties to cooperate better, contractor management, prestige, construction quality, past claims handling to better work;

(6) the constructer questions and problems, the contractor can seriously, realistic interpretation or correction;

Engineering practice, and for most of the individual claims, the higher the level of management and cooperation between the good cases, most of them are available through friendly consultations. Even in the consultation process, both parties on certain issues is consistent, also view can be obtained through consultation or identification of common understanding and thus a clear distinction between responsibility, clear disagreement. This solution has the advantage that atmosphere and peaceful, shorter, no extra cost, to facilitate the continued cooperation of late.

(3) through the mediation

When the construction claims cannot be resolved through friendly consultations, the Contracting Parties to the construction contract private terms of, the relevant departments of the mediation, the mediator in accordance with national policies, laws and regulations and the provisions of the construction contract, the parties in the Division of responsibilities on the basis of the construction claims mediation programmes. If the Contracting Parties agree to mediation programmes and signature, mediation is completed, the Contracting Parties shall carry out the mediation program.
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(4) resolution through arbitration or litigation

When the construction claims cannot be resolved through mediation, the Contracting Parties in accordance with the provisions of the construction contract private, by arbitration or litigation settlement construction claims.