【 Weak current College 】 claim knowledge manual (1)

The first chapter construction claims

The first section construction claims and its classification and function

I. construction claims

Construction claims is not because of his mistake, but rather as a contract party should be responsible for the actual loss caused to the other requirements of the proposed compensation.

In market economy conditions, the building market of construction claims is a normal phenomenon. In our country, as the Socialist market economic system is not fully formed, in engineering practice, letting people do not make the claim, the contractor did not dare to claim and don't understand the claims, the engineer will not deal with claims of widespread. Faced with this situation, in the construction market, should greatly enhance the understanding of the construction claims, and enhance knowledge and methods of the claims, seriously and do the construction claims, it is important to maintaining corporate interests.

Second, the classification of construction claims

(A) the contract claims status classification

1, the normal construction claims

Normal construction claims, is in the normal performance of the contract in the event of breach of contract, change, unforeseen factors, accelerated construction, policy changes, and other claims arising out of the situation. Normal construction claims is the most common claim forms.

2. Engineering stopping, ease the construction claims

Engineering stopping, construction claims, is the fulfilment of the contract of the project because of force majeure, Government Act, financial or other reasons must stop construction claims arising.

3, to rescind the contract claims

Rescind the contract, the means for a party in the contract, resulting in serious breach of contract does not comply, the other party to the contract to exercise the power to dissolve the contract arising out of claims.

(2) press the claim scope categories

1. contract claims

Contract claim, the claim relates to content can be found in the fulfilment of the contract pursuant to the terms and according to the terms of the contract or agreement prescribed by the duties and obligations by the Division of responsibilities, and breach of contract claims costs, duration of the calculation approach. In General, contract claims processing solution with relative ease.

2, contracts, claims

Contracts, claims and claims based on the contrary in the contract, i.e. the claim relates to content to make the terms of the contract and the agreement found by, but may be from civil law, economic law or the relevant part of the Government promulgated the regulations. If the tort, found in the civil damage behavior based on the claim, the claim in respect of the contract.

3, moral claims

Moral claim refers to the contractor, either in contract or in the contract, are unable to find a basis for the claim, no claim of conditions and reason, but he is sincere and trustworthy in performing the contract, the project's quality, progress, and letting people combined with the best efforts, but because the project estimation errors are caused considerable losses, the urge to rescue constructer, letting people in order to make their projects get good progress for sympathy and trust in the cooperation between the contractor and generous compensation to costs. Contract pay such moral assistance, access to the contractor a better cooperation, finally letting people suffered no loss. Because this is not the contractor mismanagement and quality accident losses, is often inadequate in tender evaluation. In other words, if the contractor is adequately estimated the actual situation in the contract price should also contain this part of the costs.

(C) classification according to the purpose of the claims

1. claim

Claim, the contractor is due to the non-responsibility of the construction process to delay approval of the contractor's request for extension of the duration of the contract. The claim form is on the right, to avoid for completion in the original contract, cannot be completed, letting people pursue tardiness for breach of contract. Once approved the contract duration is extended, the contractor assumes not only eliminates the tardiness of breach of contract damages for the serious risks and might lead the duration be rewarded. Therefore, the claim ultimately reflected in economic benefits.

2. the claim for costs

Cost claimant refers to when the construction of the objective conditions change led to the contractor the contractor required to spend more on beyond the planned costs for the compensation of additional costs to restore should not be borne by the economic loss claims. The purpose of the claim is for financial compensation.

(4) press the claims handling category

1, individual claims

Individual claims, refers to an event occurring due to the extension of the duration of contractor or additional expense to the contractor on the events of the actual loss on the contract period of validity of the claim. Therefore, individual claim is in relation to the events. Individual claims may be relatively simple, involving the content analysis easier, faster processing together. It may also be related to the content is more complex, the amount claimed is relatively large, it is too much trouble.

2. comprehensive claims

Comprehensive claims also known as blanket claim refers to the contractor in project completion settlement before the construction process is not resolved or contractor on letting people reply dissatisfied with individual claims, the claim of comprehensive one, the two sides to negotiate negotiation. Comprehensive claims generally individual claims remaining differences larger challenge, responsibility is divided, the costs of the holding has been calculated and cannot be resolved immediately.

III. the role of construction claims

(A) ensure the implementation of the construction contract

Construction contract signing, both parties shall have rights and obligations between the rights protected by law, this obligation is subject to legal constraints. Construction claims is the legal effects of the construction contract of and the nature of the construction contract. If no construction claims and claims on construction law, construction contract null and void, on both sides to form the constraintsSo, in respect of the implementation of a construction contract can not be guaranteed. Construction claims against violators up warning function so that it takes into account the consequences of the breach, to try to avoid breach occur. Therefore, construction claims will help both parties closer cooperation to contribute to the realization of the contract.

(Ii) implement and adjust the construction contract between both economic responsibility

Construction contract parties have rights, interests, and should bear the corresponding economic responsibility. Who does not fulfil the contractual obligations, constitute a breach, the loss caused to the other party, the right against each other, you should take appropriate contractual penalties. Leave the construction claims, construction contract responsibility will not be able to achieve, both parties of the relationship between rights and responsibility.

(3) maintenance and construction of the legitimate rights and interests of the parties to a contract

Construction claims is a way to protect themselves, defend their legitimate interests and avoid losses and increase profits. In modern engineering contract, if the contractor cannot effectively claim that the claim is not proficient in business, often making losses are not reasonable and timely compensation, it will affect normal production and business activities, or even collapse.

(4) contribute to a more affordable cost

The normal functioning of construction claims, and put the first one into the project quotation of some unforeseen costs, according to the actual loss, help to reduce engineering quotes, so more reasonable cost.

The second section of the cause of the construction claims

«Ò» ¡ ¢ constructer or engineer for breach of contract

(A) the contract were not according to the contract of and requirements for construction sites, the creation of the conditions resulting in breach of contract for construction of

Contractual terms agreed upon time and require the completion of the acquisition of land; houses; clear the obstacles on the ground, underground; ensure the construction of water, electricity, material transport; mechanical approach; for the construction of the various documents, the documents and the relevant declaration of approval, to provide information on underground pipe network lines, letting people work. Construction start date is determined by the construction contract agreement, the contractor must, in accordance with the established working time do a variety of readiness, and advance the venue do Office, warehouse, and other temporary facilities and construction, etc. If the contract were not within the time stipulated in the contract to the contractor's construction team approach to create the conditions to prepare the venue staff cannot approach, prepare the venue of the machinery cannot be put in place, should the material shipped ahead of approach does not approach, other construction start preparations cannot be carried out, resulting in a delay or the loss to the contractor, the contractor may make a claim.

(2) the contract did not press the construction contract terms should supply of materials, equipment, resulting in breach of contract

If the contract is the supply of materials, equipment, arrival time, place, price, description, specifications, quantity, quality level and in conformity with the provisions of the annex to the contract, resulting in a delay or the loss to the contractor, the contractor may make a claim.

(3) the contract were not able or not within the prescribed period of time due to breach of contract payment project fund

Letting people should follow the special provisions of time and amounts, payment to the contractor and engineering. When letting people do not have the ability to pay or drag-and-pay and the resulting suspension, resulting in a delay or the loss to the contractor, the contractor may make a claim.

(4) the engineers on the contractor's construction process for a long time about the issue of breach of contract caused by dragging of adventitious

The engineer shall, in accordance with the contract documents, the exercise of their powers to fulfil contractual duties in a timely manner to the contractor to provide the necessary direction, approval, drawings, etc. During construction, contractors in order to improve productivity, increase efficiency, earlier found problems in engineering progress and engineers find a solution, or approval of proposed solutions, engineer, if an agent does not timely settlement or approved, it will directly affect the progress of the project, resulting in breach of contract, the contractor's claims.

(5) engineers work to the contractor's fault, not the proper remedy, demanding the check etc. resulting in breach of contract

Practical work, due to specific staff work experience, business level, quality and working methods, methodologies and other reasons, often resulting in Contracting Parties of the work, due to the impact of the engineers will become the cause of the claim.

1, engineers of incorrect corrective

During construction, the engineer may occur that the contractor a construction site or items used by the material does not comply with the technical specifications or product quality requirements, so as to require the contractor to change the construction methods or stop the use of certain materials, but not afterwards proved to be the fault of the contractor and, consequently, the engineers of the remedy is not correct. In this case, the contractor is not properly correct on the economic costs and time (duration) of the corresponding compensate for losses is to safeguard their own interests.

2, the engineers on the disruption of normal construction process

In General, the engineer shall, in accordance with the construction contract to issue instructions and construction may at any time on any site for quality checks, however, the engineers on the contractor in the construction methods and construction processes without too much interference, as long as not violation of construction contract requirements and does not affect the quality of the project can be performed. If an agent is mandatory in accordance with the contractor for construction of a construction process, which might upset the contractor's normal working order, resulting in a project cannot be completed or additional costs.

Regardless of intent, as long as the engineers lead in fact to normal construction process, the results may lead to undue engineering work, started, people, idle, idle, materials supply device confusing situation such as that arising out of the actual loss, the contractor must submit a claim.

3, the engineers on the engineering conduct demanding inspection

Agent and the designated officer has the right, in the construction process at any time on any engineering conduct on-site inspections. The contractor should provide facilities, and in accordance with the engineers and delegate requirements rework, modifying, commitments by itself causes rework, modification of feesAvailable. There is no doubt that the engineers of various checks are to be checked on-the-spot brings some interference, but this kind of interference should be understood to be reasonable. Modifications made by engineers or rework of requirements should be based on the construction of the contract as specified in the technical specifications, once the engineers check exceeds the requirements of the construction contract, beyond the normal technical specifications that are demanding examinations. Common types of harsh censorship are:

(1) on the same part of the project content repeatedly checking;

(2) the use of contractual provisions are inconsistent with the inspection standards for inspection;

(3) the excessively frequent checks;

(4) intentionally not timely checks, etc.

In the face of experienced contractor, engineer on their own power should master the contract limit, excessive and inappropriate exercise their powers on engineering conduct demanding inspection, will be on the contractor's construction activities in production, will inevitably lead to claims of the contractor.

II. contract modifications and contract defects

(A) contract changes

Contract change refers to the construction contract, contract-wide content modifications or additions, and changes to the substance of the contract is to be changed to the content of the new offer and acceptance. Modern engineering, for a more complex construction works contract alteration will be dozens or even more. A large number of contract changes is the contractor's claim, each change is likely to become the basis for the claim. Contract change, generally reflected in the contract the parties after the talks, consultations on the need to change the content of the agreement, signed the minutes of the meetings and talks of the memorandum, change log, the supplementary agreement contract file. Contract change of individual content can be divided into: engineering design change, modification, engineer construction method and the delegate of the directive.

1. engineering design changes

Engineering design change in general there are two kinds of situations, namely the improvement of design changes and modifications of design changes.

The so-called perfect design change, is the implementation of the original design of construction does not perform technical changes will not be able to carry out construction of change. Usually expressed as to the design drawings omitted, contradictory, local content defects of modifications and additions. Improvement of design changes, through contracting parties can apply for a coordinated change records after.

The so-called modify design change, is not the design reasons on the original design project design to modify the content. This type of design change causes mainly from constructer's requirements and changes in social conditions.

For improvement of design changes, is an experienced contractor is expected to change. Often found by the contractor and submit to the engineer to solve, and design changes. Such changes generally on the effect of the quantities, to the construction of various scheduling, material supply, human and machine provisioning has little effect on the claims.

For modifying the design change, even for experienced contractor is unpredictable. Although this change of design changes is not entirely constructer of its reasons, but its often affect the contractor's part or even the entire construction plan of arrangement, brought many to the construction of adverse factors:

(1) the contractor repeat purchases;

(2) adjust the deployment of human resources;

(3) adjust the mechanical leveling;

(4) wait for modifying the design drawings;

(5) on completion of the demolition works, etc.

(6) costs than originally planned increase in duration than planned extension;

The contractor will seize this opportunity to contract person for design changes arising from the claim.

2. construction change method

Construction method changes are approved by the engineer to perform construction design, as a result of any actual changes required on certain specific construction method. This construction method of modifying the approval shall be submitted to the engineer.

Construction methods change, bound to the scheduled construction programmes, materials, equipment, human and mechanical leveling, will enable the construction cost increase, other costs, thus giving rise to the claims of the contractor.

3, engineers of Directive

If accelerated construction contractor engineer directive, change of certain materials, to take certain measures in some work or suspend construction, etc, you bring a larger component of man-made changes to the contract, the contractor can seize this opportunity to change the contract, a claim.

(Ii) contract defects

Contract defects, refers to the contracting parties signed the construction contract to enter the implementation phase is discovered, the contract itself exists at present is difficult to modify or supplement.

A large number of projects contract management experience has proved that the construction contract in the implementation process, often found in the following situations:

(1) the terms of the contract terms, vague, not enough accurate, it is difficult to distinguish between the two sides of the responsibility and interest;

(2) contractual terms in vulnerability on the actual situation that may occur and not be expected, the lack of certain essential terms;

(3) of the contradiction between the terms of the contract, namely, in different terms, the provisions of the same issues or inconsistencies;

(4) the contract is signed before the parties to understand the terms of the contract, the parties to communicate on certain articles understanding inconsistencies and contract disputes;

(5) a party to the contract require too harsh, constraints do not balance, or even find some articles is a kind of trap, certain terms implies higher risk.

According to the construction contract was signed in accordance with legal justice, honesty, equality and mutual benefit, to the principle of equivalence of paid to the legal presumption that the contract the parties sign the contract before you have carefully read and understand the contract documents, see contract within each specificLet herself willing to accept the will of expression, for future cooperation in good faith intention to write in. Not a party to the other side of the force, deception and unfair behavior. Therefore, once the contract signed the contract itself found problems, and defects in accordance with the contract.

Regardless of the contractual limitation expressed in either case, the end result may be one of the following two situations:

(1) the parties to the contract have to re-interpret defines, delineation of the responsibilities of both consultation and interest;

(2) each party in accordance with the provisions of this understanding, the adverse parties blame, heated in a contract dispute, the arbitration body ruling.

In short, the solution of the construction contract defects are often and construction claims and settlement of contractual disputes.

Third, the unpredictability factor

(1) the unpredictability obstacles

Unpredictability, refers to the contractor in the pre-construction, according to the contract by engineering geological survey report and field data, and after-the-spot investigation, are unable to find underground natural or artificial obstacles. As an ancient well, grave pits, faults, caves and other artificial structure class barriers, etc.

Unpredictability obstacles in practical engineering, performance for the uncertainty of the more common obstacles. The so-called uncertainty obstacles, refers to the contractor under the contract by engineering geological survey report and field information, or the field investigation found underground natural or artificial barriers, but because data description and actual condition of the major differences, and these differences lead to the contractor not to be able to accurately establish treatment plan, estimated processing costs.

Uncertainty is an unpredictability barrier barriers, but from the perspective of construction claims, unpredictability disorder claims easier to be approved, not deterministic disorder claims you need according to the terms of the construction contract rules. Differentiate uncertainty and unpredictability barrier performance, taking different claim is construction claims managers should be aware of.

(2) other reasons to third parties

Other third-party cause, and works of other third parties of problems to project construction. Its performance is complex and diverse, often difficult to partition type. If the following conditions:

(1) are in accordance with the contract of supply of material units that must be closed, need of material supply disruption;

(2) the reasons for the railway sector, the normal material transport causing pressure points so that equipment later than date of arrival, installed or not matching the scene;

(3) entry device for any transport must bridge, broken down to bypass the freight.

Such as these and similar problems, from an objective point of view to the construction of the contractor caused a halt, and more expenses.

If the above condition of material supply contracts, equipment orders contracts and equipment transport routes is letting people and third-party signed or agreed, the contractor may claim to letting people.

IV. national policies and regulations change

National policies, regulatory changes, usually refers to a direct impact on the cost of some national policies, laws and regulations. China is currently in the development phase of reform and opening up, especially after joining the WTO, is working with the international market, price management gradually transition to a market regulation, every year on the construction cost of adjustment file it launched project inevitable impact factors for this class, the Contracting Parties at the time of the signing of the contract must pay attention. At this stage, the result of national policies, laws and regulations change increased project costs represent a large proportion, a claim cannot be ignored. Common national policies, regulatory changes are:

(1) the project cost management sector of the construction material published price adjustment;

(2) building materials market and budget fixed file handle of the price difference;

(3) the countries to adjust the interest rate on the construction of bank loans;

(4) the national departments in engineering stopping the use of certain equipment, some materials;

(5) the national authorities in the project to promote certain equipment and construction technology;

(6) countries on certain equipment, construction materials import restrictions, tariff increases.

Obviously, the relevant policies and regulations on construction cost will definitely have an impact, the contractor may be based on these policies and regulations to the constructer compensation requirements. If these policies and regulations will reduce the cost of the project implementation, the benefit of the doubt should be awarded.