On management and claim of construction contract.
Based on the development of engineering projects at home and abroad, this paper analyzes the great significance of claim management in engineering project contract management, focuses on the main reasons and calculation methods of claim in contract management, explains the claim procedure and claim skills in detail, and puts forward personal opinions and suggestions for ensuring the smooth implementation of claim.
Keywords: claim; Engineering claim; Claim management; contract management
China Library Classification. : TU723. 1 Document ID: A ItemNo.:
Engineering claim is an important and effective means for contract parties to safeguard their legitimate rights and interests, make up for engineering losses and improve economic benefits. In many engineering projects, successful claims can greatly improve the project income, and some engineering claims even exceed the project contract amount itself. Claim is paid more and more attention because of its low cost and obvious economic effect. Therefore, claim management is very important in project contract management.
First, the understanding of claim management and the important role of claim in contract management
1. Claim management is a part of construction contract management.
Claim refers to the right of one party to claim compensation or compensation from the other party when it suffers losses due to the other party's breach of contract, other faults or unforeseen external factors. Counterclaim is a reasonable behavior to avoid the economic loss caused by the other party's claim. In bidding project construction, contract management is the core of project construction management, and claims and counterclaims are important components of contract management.
2. The role and significance of claims and counterclaims in contract management.
The unity of opposites between claims and counterclaims promotes the management level of both owners and contractors, and promotes the implementation of project construction along the legal track according to economic laws; It is beneficial to enhance the consciousness of the construction site managers to carry out contract management throughout the whole process of project construction, enhance their sense of crisis and responsibility, and overcome the tendency of choosing words carefully in the contract signing stage and shelving the contract in the contract implementation stage.
Second, the relationship between contract management and claims and claims arising from contract management
1, the relationship between contract management and claim
The performance of the contract is the obligation of both the employer and the contractor, and the claim is legal and directly related to the contract management. The whole process of claim is the process of fulfilling contractual obligations. Judging from the relationship between the claim and the contract itself, the claim is a supplement to the contract defects. In the process of performing the contract, there are many unpredictable or unpredictable factors, which inevitably lead to the occurrence of contract defects. In the process of claim, it tends to be perfect by constantly modifying and supplementing the terms of the contract.
2. Claims arising from contract management
(1) Claims for breach of contract by the parties to the contract. The performance is that the parties fail to perform their obligations according to the contract requirements, and the defaults to the employer mainly include: failure to provide the contractor with the construction conditions agreed in the contract, failure to pay the project advance payment according to the date and corresponding amount stipulated in the contract, failure of the employer to pay the settlement price for the completion of the project as agreed in the contract, failure of the employer to perform its obligations as agreed in the contract, deliberate concealment of the specific conditions of the project, and failure of the engineer to issue drawings and instructions in time. All these bring economic losses to the contractor.
(2) Claims arising from the contract itself. It refers to an imprecise or even contradictory contract due to the defects of the contract itself. If the contract discussion is vague, there are omissions or errors in the contract, the engineer should explain it in time. If the expenses are increased or the construction period is prolonged due to the explanation, the responsibility shall be borne by the employer and compensation shall be given; When the contract amount increases or decreases by more than 15% and the changes of laws and regulations, currency and exchange rate are not fully considered in the contract, claims are also required.
(3) Claims caused by contract changes. The claim for alteration of the construction contract of the construction project involves the interests of the owners, supervisors, designers and contractors, especially the interests of the owners and contractors. In the long-term performance of the construction contract, it is almost impossible not to change, and the claim caused by the contract change is also a very normal contract performance process and a fair way to solve the problem.
Third, the evidence of the claim
Evidence of claim is the documents and materials used by the parties to support their claim or related to the claim, and the evidence of claim should be true, comprehensive, timely and legal. In the process of process project implementation, the common evidence of claim mainly includes: various process contract documents; Construction log; Processing photos and audio-visual materials; Letters and telephone records; Minutes of talks; Meteorological reports and data; Project schedule; Reference materials and site materials provided by the owner before bidding; Engineering memoranda and various visas; Engineering settlement data and related financial reports; Various inspection and acceptance reports and technical appraisal reports.
Fourth, the specific operation content of the claim
1, claim calculation method
When the claim event occurs, the letter of intent for claim shall be submitted to the supervision engineer in time and copied to the relevant units according to the contract requirements. The type of claim and the calculation method of starting and ending dates are as follows:
(1) Claims caused by engineering changes: divided into engineering construction projects that have been changed, engineering construction projects that have increased or changed in local scale and quantity, and equipment selection changes, etc. Calculation method: the date when the construction unit receives the written engineering change instruction from the supervision engineer or the change drawing issued by the owner is the start date, and the completion date of the change project is the end date of the claim.
(2) Claims caused by the contractor's unforeseeable ability: Due to the incomplete drawings during the project bidding, some project contractors cannot make correct calculations, and such projects generally claim that the number of projects has increased or new technologies and equipment need to be re-invested. Calculation method: the first day when the contractor's unforeseen circumstances begin to appear is the start date, and the end date is the end date of the claim.
③ Claims caused by external environment: claims caused by external environment (such as land acquisition, demolition, construction conditions, land access and use right, etc.). ). According to the construction plan approved by the supervision engineer, the first day of the impact is the start date. The end date of the claim event is the date when the claim disappears due to the owner's coordination or external environmental influence. This kind of project generally claims the construction period and the stagnation cost of construction machinery.
2. Records of the same period
(1) After the letter of intent for claim is submitted, it shall be recorded in the same period from the date of the claim event to the date of the end of the claim event, and recorded every day, and signed by the on-site supervision engineer; When the claim event causes site losses, the integrity of site photos and video materials should also be completed, and printed instructions should be pasted and signed by the supervision engineer. Otherwise, it is difficult to become favorable evidence when claiming.
(2) The contents recorded in the same period include: the actual situation at the time of the incident and during the incident, and the delay in the construction period caused by the idle list of on-site personnel and equipment; The degree of damage to the project; Items that lead to increased expenses and the number of personnel, machinery, materials and valid bills used.
V. Claims Procedure and Claims Skills
1, claim procedure
(1) Find a legitimate claim.
(2) issue a notice of claim. ③ Approval of the claim.
2. Claim skills
Adopting correct claim strategy and flexible claim skills is the key to successful claim. Both parties to the contract should also pay attention to the skills and art of claim when starting the claim:
(1) is broken into parts. (2) Easy first, then difficult. 3 keep an eye on it. (4) The contractor's claim documents shall be complete and can withstand inspection, scrutiny and audit.
Intransitive verb claim report
1, basic requirements for writing claims report
A claim report is a written document to lodge a claim with the other party. The claim report should be convincing, reasonable, well-founded and logical, and can convince engineers, owners, mediators and arbitrators. At the same time, it should be a formal written document with legal effect.
2, the content of the claim report
The completion report shall include the following contents: ① official documents of the construction unit; (2) Claim application form: fill in the basis of claim items, supporting documents, claim amount and date; (3) the approved letter of intent for claim; ④ Description: A detailed description of the cause, process and outcome of the claim; ⑤ Attachments: all kinds of correspondence documents related to this expense or time limit claim, including certification materials and detailed calculation data related to time limit and expense claim issued by the construction unit.
Seven. Measures to ensure the success of claim
1, understand and be familiar with the legal environment of the project contract.
Law is superior to contract, and contract is governed by law. The entry into force, interpretation, alteration, claim and dispute settlement of a contract all involve the principles and interpretation of the law. When there is a conflict between the project contract and the law, the legal provisions of the host country usually prevail.
2. Compiling a complete and convincing claim report is also the key to the success of the claim.
3. Finding out the claim facts and preparing sufficient claim basis are the key to the success of construction claim. The key to the success of the claim is to keep all the original evidence that can prove that you have the rights you can get. Is it reasonable? So as to file a claim; ? According to? In order to claim successfully.
Eight. conclusion
Claim is an inevitable event in the execution of engineering contract, so claim should be understood correctly; Pay attention to the contract content, standardize the contract execution process and strengthen contract management; Improve the bidding quality and tighten the bidding documents; Strengthen cost accounting and control, prevent and reduce the occurrence of claims and counterclaims, so that the contract can be executed smoothly and efficiently.
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