First, the impact of the claim on the project cost.
In the fierce bidding competition, bidders often win the bid at a lower bid price. For the threat of loss caused by the change of conditions in the construction process, they must find all possible opportunities to claim compensation to reduce their own risks. SAE, a French subsidiary company, contracted the Beijing International Trade Center project with a total price of 65.438+87.5 million yuan. Due to various reasonable and favorable claims during the construction period, the project cost increased by 495 million yuan, which turned the project that was originally destined to lose money into a profiteering project. According to statistics, the profit of international projects can be increased by 3%-5% through project management and 10-20% through claim management. The average number of claims for each project is 20, and the success rate of claims is about 93%. It can be seen that claim is a very important factor affecting the project cost. In order to effectively control the project cost, it is necessary to effectively supervise the claim.
Second, the claim phenomenon and related regulations
(A) the phenomenon of claims
Due to changes in site conditions, climate conditions, construction progress and price, as well as changes and delays in contract terms, specifications, standard documents and construction drawings, claims will inevitably occur in project contracting, which is a common phenomenon in project contracting. Claims are two-way, and they are claims of rights. If the other party fails to perform or fails to perform its obligations correctly, the injured party demands compensation for its own losses, which is a proper means to safeguard its legitimate rights and interests, increase its interests or reduce its losses. At the same time, the claim is also a supplement and improvement to the contract, a reasonable redistribution of the risk ratio between the contracting parties and a normal business of contract management.
(2) Provisions of China on claim procedure and time limit.
In the relevant clauses of China's "Construction Contract for Construction Projects", the procedures and time requirements for claims are clearly and strictly defined, mainly including:
The contracting party (contractor) fails to perform its obligations as agreed in the contract, or makes mistakes and other circumstances that should be borne by the contracting party (contractor), resulting in delays in construction period and/or payment of contract price and other economic losses of the contracting party (contractor). The Contractor may claim compensation from the Employer in writing according to the following procedures:
1, within 28 days after the claim occurs, send a notice of claim intention to the engineer;
2. Within 28 days after the notice of claim intention is issued, submit the claim report and related materials for compensating economic losses and/or extending the construction period to the engineer;
3. The engineer shall give a reply within 28 days after receiving the claim report and relevant materials issued by the contractor, or ask the contractor to further supplement the claim reasons and evidence;
4. If the engineer fails to reply or put forward further requirements to the contractor within 28 days after receiving the claim report and related materials sent by the contractor, the claim shall be deemed to have been approved;
5. When the claim continues, the contractor shall issue a claim intention to the engineer in stages, and send the relevant information and final claim report to the engineer within 28 days after the claim event ends. The claim recovery procedure is the same as that specified in 3 and 4.
The employer may also lodge a claim with the contractor within the time limit specified in the above clause.
Third, the construction claim
Construction claim usually refers to the request made by the contractor to the owner in order to obtain economic compensation or extend the construction period. Claim management is an important way to improve the economic benefits of contracted projects and the viability of enterprises.
(1) Claim reason
1. Owner's or engineer's fault: delay in delivery of construction drawing; The engineer's data is wrong, which leads to the setting-out error; The owner fails to provide the site; Unreasonable instructions cause temporary shutdown or greatly reduce work efficiency; Improper termination of the project by the owner.
2. Owner's risk and other risks.
3, engineering changes and the owner's default, etc.
(b) How to make effective claims?
1. Carefully study the bidding documents and contracts and take corresponding risk control measures.
2. Establish a strong claims team.
3. Implement unbalanced quotation to prepare for future claims.
4. Guide the design to change in the direction that is beneficial to you, and create various favorable claim opportunities in combination with unbalanced quotation.
5, choose the right time to claim, 25% to 75% of the project completion should be the time to effectively handle a large number of claims.
6. Adopt a reasonable pricing method.
With China's entry into WTO, the construction industry is facing severe challenges from domestic and international markets. The reform of construction management system and the reconstruction of construction market order in China forced contractors to adjust and rebuild the management and operation mode of enterprises. Practice has proved that strengthening contract management and claim by contractors is the best way to maximize benefits.
Four. countercharge
Counterclaim refers to the claim made by the owner to the contractor. When the contractor fails to perform or fails to fully perform the agreed obligations, or the owner suffers losses due to the contractor's actions, the owner has been claiming compensation from the contractor in order to safeguard his own interests.
In the process of engineering construction, due to the different starting points and fundamental interests of the owners and contractors, there are adverse selection and moral hazard, among which unhealthy claims will cause great losses to the interests of the owners. The owner should raise the awareness of prevention, minimize the breach of contract, and take advantage of possible counterclaim opportunities to better ensure the realization of the project objectives.
(A) the reasons for counterclaim
1, the claim for the contractor's liability for breach of contract. According to the provisions of the Construction Contract for Construction Projects, the project cannot be completed according to the completion date agreed in the agreement or the extended time limit agreed by the engineer due to the contractor, or the project quality cannot meet the quality standards agreed in the agreement due to the contractor, or the contractor fails to perform its contractual obligations or fails to perform its obligations according to the contract. The contractor shall bear the liability for breach of contract and compensate the losses caused to the employer by its breach of contract.
(1) counterclaim for time delay. If the utilization of the project by the owner is affected, the contractor shall compensate the owner for the loss of profits and the increase of various expenses caused by the delay in the construction period, but the accumulated compensation amount shall generally not exceed 65,438+00% of the total contract amount.
(2) counterclaim for construction defects. When the quality of the contracted project does not meet the requirements of the technical regulations for construction, and the project to be repaired is not completed, the owner has the right to hold the contractor accountable.
(3) The contractor fails to perform the maintenance obligations during the project warranty period.
(4) The contractor fails to pay the insurance premium.
2. For the claim of excess profits, if the engineering quantity increases a lot (more than 15% of the effective contract price), the contractor's expected income will increase greatly, and the contractor will not increase the fixed cost because of the increase of engineering quantity. The contract price should be adjusted by both parties through consultation to recover some excess profits.
Changes in laws and regulations have led the contractor to reduce costs and generate excess profits in project implementation, so the contract price should be readjusted to recover some excess profits.
3. Claim against the designated subcontractor.
Claims for reasonable termination of the contract by the owner or improper abandonment of the project by the contractor. The owner has the right to recover from the contractor the difference between the project payment required by the new contractor to complete the project and the unpaid part of the original contract.
4. Claims for personal or property losses caused by industrial accidents to the owner's personnel and third-party personnel, claims for damages to roads, bridges or tunnels caused by contractors when transporting building materials and construction machinery and equipment, and claims made by road and bridge management departments.
(2) Counterclaim measures
1. Strengthen management and reduce the risk of claim.
(1) plan management. There should be a realistic plan for the investment, construction period and quality of infrastructure projects, and quota design should be implemented (that is, the preliminary design should be controlled according to the approved feasibility study report and investment estimate, and the technical design should be controlled according to the approved total budget estimate of the preliminary design), so as to strictly control the project cost and reduce the risk of settlement and payment. According to the regulations of the State Planning Commission, from 199 1, if the static investment of the project is overspent due to the mistakes or omissions of the design unit or the expansion of scale and improvement of standards, the design fee will be deducted by 3%-20%:
(2) Bidding management. Further strengthen the bidding of standardized design, supervision and construction process, establish the concept of comprehensive bidding, push design and supervision to the market, and supervise design to further supervise the quality and progress of design. Put an end to designing while constructing, and don't give the contractor many claims opportunities because of engineering changes. Through the formulation of bidding documents and the qualification examination of contractors, unsuitable contractors and project managers are blocked from bidding.
(3) Contract management. The owner should carefully study the connotation of the contract terms, sign a comprehensive and feasible contract, fully consider all kinds of risks that may occur in the future construction and settlement of the project, and tightly bind the project construction management in the contract. Make clear provisions on the settlement principle of claim expenses to ensure that the profit level of the claim part is equivalent to the bid price.
(4) supervision and management. Clear supervision responsibilities, comprehensive supervision of engineering material quality, construction quality and time limit for a project. Strictly review the visa materials during the construction process, and distinguish the responsibilities, and all losses caused by the contractor's own responsibilities will not be signed; The visa should be verified in time and issued. If it cannot be verified, the visa will not be granted within the time limit; The contractor changed the visa without authorization.
2. Review and modify the claim submitted by the contractor.
(1) Regardless of whether the claim is based on the contract or not, the contractor has the right to claim for any claim clearly specified in the project contract documents, otherwise, the owner may refuse to claim.
(2) Whether the claim evidence cited in the claim report is true and comprehensive, and whether it has legal proof effect.
(3) Whether the occurrence of the claim is the responsibility of the contractor belongs to the situation that both parties have certain responsibilities, and the responsibility ratio shall be determined.
(4) Whether the contractor has taken control measures at the beginning of the claim. If the contractor fails to take any measures to prevent the situation from deteriorating, the owner may refuse to compensate for the loss.
(5) Whether the claim belongs to the contractor's risk category is the content of the contractor's contract risk, such as general drought or rainy weather and rising domestic prices. Car owners generally won't accept these claims.
(6) Whether the contractor submits the notice of claim intention to the owner and engineer within the time limit stipulated in the contract (generally within 28 days after the claim event).
3. Carefully verify the claim amount.
(1) Claim expense review
Main audit: the calculation range of claim expenses (only the owner's responsibility and the risks that the owner should bear are calculated); The valuation level of the claimed expenses (based on the contract terms and contract quotation, not the actual loss); Normal labor costs and mechanical shifts cannot calculate the labor and machinery that have stopped working; Headquarters management fees and profits should be calculated clearly.
There are three main calculation methods of claim cost: itemized method, full cost method and modified full cost method, and the itemized method is generally adopted.
(2) Review of claim time limit for a project
The claim value of construction period is not necessarily the actual delay time of a certain process. Because it is the work on the critical line that directly affects the construction period, when the process delay time on the non-critical line exceeds the free time difference, it will also affect the total construction period; The contractor will not be compensated for improper construction organization, low work efficiency and untimely supply of equipment and materials.
Verb (abbreviation of verb) audit problem
1, review whether the infrastructure management system is sound and effective.
The infrastructure management department must establish a series of management systems, such as plan management, bidding management, contract management, supervision management and pre-settlement management, and strictly implement them, which is the fundamental way to control the claim risk. For example, due to the high groundwater level, the contractor increased the number of pumping teams and pump models in the visa for a staff residential foundation project in the north area of our school. Through the analysis, we found that the engineering quantity is increasing, and there is no signature and seal of the infrastructure department. In this regard, through consultation with the infrastructure department, we reduced by nearly 200,000 yuan and further improved the visa management.
2. Strictly control unreasonable claims.
For example, in the bidding documents of two teaching buildings under construction in our school, due to miscalculation of building height, the projects are divided into four categories. At the bidding preparatory meeting, the bidder did not raise any objection. After winning the bid, the contractor found that the project reached the third-class standard, and asked to change it to the third class, which increased the cost by more than 900 thousand yuan, and asked to calculate several hundred thousand yuan according to the peak hours. These statements were denied by us. Because the contractor bids according to the bidding documents, drawings and other relevant materials, recognizes the provisions of the bidding documents and signs the corresponding contracts.
3. Strictly review the claims caused by engineering changes.
Engineering change is a common phenomenon in construction, and it is also an important link that affects the project cost. The later the change, the greater the loss. On the one hand, it is necessary to review whether the project change has been confirmed by the owner, whether the change procedures and materials are complete, and whether the calculation of the change cost is reasonable. On the other hand, it is necessary to review the proportion of the changed part in the project and the loss caused by the change, so as to further improve the management of the changed project.
4. Review whether the counterclaim has been executed.
Is there a clear responsibility for the contractor's counterclaim for failing to complete the project on time or the project quality is not in conformity with the contract?