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Paragraph 1 of Article 23 of the Conditions of Contract for 2007 Model Contract stipulates the reasons for the claim as follows: According to the contract, if the contractor thinks that he is entitled to additional payment and/or extension of the construction period, he shall lodge a claim with the employer according to the following procedures.
The meaning of this clause is that if the events agreed in the contract happen, the contractor can claim compensation from the employer and exercise his rights as long as he thinks he is entitled to additional payment and/or extension of the construction period. Due to the increasingly fierce competition in the construction market, the economic benefits of the construction industry are generally low, and some enterprises are almost difficult to maintain, which makes construction enterprises very sensitive to economic benefits, forcing them to adopt the strategy of winning the bid at a low price and making profits by claiming compensation. The factors causing the claim are very complicated. For example, in the "Model Contract 2007", the reasons why the contractor can lodge a claim are as follows: First, the employer breaches the contract. 5.4.3 If the materials or engineering equipment provided by the Employer do not conform to the contract requirements, the Contractor has the right to refuse and may require the Employer to replace them, and the Employer shall bear the increased expenses and/or delays in the construction period. The second is the contract change. For example, 1 1.3( 1) added the contract work content; (2) Change the quality requirements or other characteristics of any work in the contract; The third is the extension and delay of the construction period. If 1 1.3 the employer delays the construction period during the performance of the contract, the contractor has the right to ask the employer to extend the construction period and/or increase the cost, and pay a reasonable profit. If it is necessary to modify the contract schedule, it shall be handled in accordance with the provisions of 10.2. Fourth, the supervisor's instructions and behavior. 3.4.5 If the supervisor fails to give instructions, delay instructions or make mistakes as agreed in the contract, which leads to the increase of the contractor's expenses and/or the delay of the construction period, the employer shall be liable for compensation. Fifth, the contract is flawed. When drafting a contract, it is difficult to foresee and stipulate all the problems in the contract due to the complex engineering conditions and environment, so there are inevitably thoughtless clauses, defects and deficiencies in the contract, which leads to disputes in the performance of the contract, affecting the project progress and extending the construction period [2].
When the above situation exists in the project, the contractor can make a claim in time to safeguard his own interests. In contrast, Article 36, paragraph 1, of the Conditions of Contract for Construction Projects, 99th Edition stipulates as follows: When one party claims against the other party, it must have proper reasons for the claim and valid evidence at the time of the claim. The clause here uses the phrase just cause of claim, which seems to be no different from the contractor's claim for extra payment and/or extension of construction period, and its meaning is no different. However, I think there are still some differences between them. The 99 version of the model contract only states the justified reasons for the claim, but the expression of the justified reasons for the claim is somewhat unclear. What is a legitimate cause of claim? There is no clear agreement on the criteria to determine the legitimate cause of claim in the claim conditions. For example, the contractor suffered losses because he didn't find any obvious mistakes in reworking drawings, which is not a legitimate cause of claim and can't make a claim. How to correctly distinguish legal and illegal creditor's rights? This may cause disputes between the two parties at the beginning of the claim, and the 07 version of the Model Contract clearly follows the contract. Another feature of Model Contract 2007 is the word "want to be right". First, the right clearly emphasizes that the contractor has the right to claim compensation, which is guaranteed by law. Then the contractor can claim as long as he thinks he has the right to claim, without worrying about whether his claim is reasonable or not, and without worrying about whether the claim is successful or not. Therefore, for China contractors who are often at a disadvantage in claims, the "07 Model Contract" pays more attention to protecting the rights of contractors.
2 Claim submission
Regarding the claim procedure, Clause 1 of Article 23 of the Conditions of Contract of the 2007 model contract stipulates: First, the contractor shall submit a notice of claim intention to the supervisor within 28 days after knowing or should have known the claim event, and explain the reasons for the claim event. If the contractor fails to send the notice of claim intention within the above 28 days, it will lose the right to ask for additional payment and/or extend the construction period. Second, the contractor shall formally submit the notice of claim to the supervisor within 28 days after issuing the notice of claim intention. The notice of claim shall explain the reasons for the claim, the amount of additional payment and/or the extended construction period, and attach the necessary records and supporting materials. Thirdly, if the claim event has a lasting impact, the contractor shall continue to submit the claim extension notice within a reasonable time interval, explain the actual situation and records of the lasting impact, and list the accumulated extra payment amount and/or the number of days to extend the construction period. Fourth, within 28 days after the impact of the claim event, the contractor shall submit the final claim notice to the supervisor, stating the additional payment amount and extended construction period of the final claim, and attach records and supporting materials.
The period from the submission of claim intention to the formal submission of claim documents belongs to the preparation stage of contractor's claim information. According to the requirements of the contract, the main tasks of the contractor at this stage are: First, follow up and investigate the interference events, and master the detailed process and cause and effect of the events. From this, the contractor decides whether to file a claim. The second is to analyze the causes of interference events, draw a clear line of responsibilities of all parties, determine who will bear them, and analyze whether these interference events violate the contract provisions and whether they are within the scope of compensation stipulated in the contract, that is, to determine the basis of claim. The third is the investigation or calculation of loss or damage. By comparing the actual and planned construction progress and project cost, the scope and size of economic loss or right damage are analyzed, and the value of time limit claim and cost claim is calculated accordingly. These two items are the main contents of the notice of claim that the contractor should submit, and they are the concentrated explanations of the contractor's willingness to claim. The fourth is to collect evidence. In the whole process from the occurrence, continuation to the end of the interference incident, complete records must be kept at that time, which is the composition of necessary records and supporting materials stipulated in Article 23. 1 of the contract and an important condition for the success of the claim. In practical work, many contractors' claims can't be solved reasonably due to lack of written evidence, which should be paid great attention to by contractors. Fifthly, when the claim event has a lasting impact, the contractor shall submit a claim continuation notice. And summarize all previous claims and submit the final claim notice.
In contrast, Article 36 of Model Contract No.99 (1) stipulates the following procedures for filing a claim: First, the engineer shall be informed of the claim intention within 28 days after the claim event. Within 28 days after sending the notice of claim intention, submit the claim report and information about extending the construction period and/or compensating for economic losses to the engineer. Third, the engineer will give a reply within 28 days after receiving the claim report and related materials from the contractor, or ask the contractor to further supplement the claim reasons and evidence. Fourthly, if the engineer fails to give a reply or put forward further requirements to the contractor within 28 days after receiving the claim report and relevant materials sent by the contractor, the claim shall be deemed to have been approved. Fifthly, when the claim continues, the contractor shall issue a claim intention to the engineer in stages, and send the relevant information and the final claim report to the engineer within 28 days after the claim event is over.
Why do you want to delete this item in the 07 contract? The author believes that there are two reasons: first, the success of the claim depends largely on the contractor's explanation of the claim and the authentic proof materials. Even if we seize the claim opportunity in the performance of the contract, our claim will often be difficult to succeed or greatly discounted if we can't produce the claim evidence or the evidence is insufficient. Therefore, the contractor himself should be aware of the importance of the claim notice he wants to submit and try his best to improve it, instead of hoping to submit supplementary materials in the future. Second, in the "99 Model Contract", the engineer decides whether to submit supplementary materials. It may be obvious that the reason is very good, but the engineer refuses it on the grounds that it needs to be supplemented, which is not conducive to protecting the contractor's due rights. The "07 Edition Contract Model" skipped this link and directly entered the claim processing link, avoiding the interception of engineers, which is undoubtedly of great progress significance.
3 Handling of claims
Paragraph 2 of Article 23 of the Contract Conditions of 2007 Model Contract stipulates the procedure for handling claims: firstly, after receiving the claim notice submitted by the contractor, the supervisor shall timely review the contents of the claim notice and check the contractor's records and supporting materials. If necessary, the supervisor may require the contractor to submit copies of all original records. Second, the supervisor shall agree or determine the additional payment and/or extension of the construction period according to Clause 3.5, and reply the claim processing result to the contractor within 42 days after receiving the above claim notice or further supporting materials related to the claim. Third, if the contractor accepts the claim settlement result, the employer shall complete the payment within 28 days after responding to the claim settlement result. If the contractor does not accept the claim settlement result, it shall be handled in accordance with the provisions of Article 24. The flow chart of claim processing in 07 contract model is shown in figure 1. After receiving the notice of the contractor's claim intention, the supervisor shall establish his own claim file, pay close attention to the impact of the incident, consult the contractor's records for the same period and make comments on the contents of the records. This is the preparation work. Then there is the review work. After receiving the contractor's formal claim report, the supervisor should carefully study the claim information submitted by the contractor, objectively analyze the cause of the incident, study the claim evidence according to the relevant provisions of the contract, consult the records of the same period, draw a clear line of responsibility, and ask the contractor to provide further supplementary information when necessary. The audit of the contractor's claim is mainly divided into two aspects: judging whether the claim event is established and checking whether the contractor's claim calculation is correct and reasonable, and making his own independent judgment within the scope authorized by the employer [3].
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