(1) Breach of contract by the parties: refers to the behavior of the parties to the contract that no performance at all fails to comply with the contract or perform contractual obligations.
Owner's breach of contract-
(1) The owner failed to deliver the design drawings and related design materials as stipulated in the contract, which delayed the construction period.
(2) The owner fails to transport the goods to the construction site as stipulated in the contract.
(3) The construction site delivered by the owner does not have the construction conditions.
(4) The owner failed to meet the needs of construction water, electricity and communication.
(5) The owner failed to ensure smooth transportation during the construction period.
(6) The owner orders to change the construction sequence stipulated in the original contract and disrupt the construction deployment.
(7) The owner failed to handle all kinds of certificates required for construction in time.
(8) The Owner fails to provide the supplied materials and equipment on time.
(9) The owner delays the completion of the responsibilities stipulated in the contract.
(10) The owner fails to pay the project payment as stipulated in the contract.
(1 1) The owner requested to rush the work, resulting in an increase in the expenditure of the construction enterprise.
(12) The owner occupied part of the permanent works in advance, which hindered the normal construction.
② Force Majeure events: events that cannot be foreseen, prevented, avoided or controlled by the parties to the contract. The general principles of China's civil law refer to "unforeseeable, unavoidable and insurmountable objective conditions". Even experienced contractors can't foresee and prepare, and contractors can't stop and influence them.
Force majeure events mainly refer to natural disasters, social unrest, rising prices, inflation and other reasons that lead to a sharp rise in material prices and labor costs, thus affecting the production costs of construction enterprises and leading to unexpected losses.
(3) Contract defects: 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 ill-considered clauses, defects and deficiencies in the contract, which will lead to disputes in the performance of the contract, affect the project progress and extend the construction period.
④ Contract change: in a narrow sense, contract change only refers to the change of contract content, not including the change of contract subject, so the change of contract content is an indispensable condition for contract change. Changes in contract contents include: 1. Changes to the theme; mark
Increase or decrease in the number of things; 3. Changes in the quality of the subject matter; 4. Increase or decrease in price or remuneration; 5. Change of performance period; 6. Change the place of performance; 7. Changes in the way of performance; 8. Changes in settlement methods; 9. Add or delete additional conditions; 10. Simple creditor's rights become selective creditor's rights; 1 1. Creation or disappearance of guarantee; 12. Change of liquidated damages; 13. Changes in interests, etc.
Contract change will bring extra work to the contractor, so it is also a major factor causing construction claims. There are many forms of contract change, mainly including the following aspects:
(1) Due to various reasons, the owner has new requirements for the project, such as raising or lowering the decoration standard, changing the use and reducing the budget.
(2) In the process of construction, it is found that the design is wrong, and the changes caused by modifying the design drawings.
(3) In case of force majeure, the contract should also be amended.
(4) The construction conditions of the construction site are quite different from the original survey, resulting in changes.
(5) To adopt new construction technology, it is necessary to change the original design and construction scheme to improve social productivity and engineering quality.
(6) Government departments have new requirements for the project.
Contract changes may bring difficulties to the project and cause additional losses to the construction enterprise, but it should be noted that contract changes may not necessarily cause claims.
⑤ Defects of the engineer's instructions: The instructions of the on-site engineer shall be confirmed in writing in time.
⑥ Other third-party reasons: brother unit construction, etc.
Second, the claim category:
① According to the contractual basis of the claim, it can be divided into: express claim and implied claim;
② According to the purpose of the claim, it can be divided into: claim for construction period and claim for expenses;
③ According to the nature of the claim, it can be divided into: project delay claim, project change claim, contract termination claim, project acceleration claim, accident risk claim and unforeseeable factor claim;
④ According to the claim process, it can be divided into individual claims and overall claims, direct claims and indirect claims.
Three. Claim basis:
A-tender documents b-construction contract c-letter d-meeting minutes e-site information f-inspection report
G-water and electricity records and vouchers h-relevant laws and regulations i-accounting information and vouchers, etc.
Note 1: bidding documents, contract texts and annexes, other contracts (memoranda, amendments, etc. ), and the project approved by the owner.
Implementation plan, various engineering drawings (including drawings modification instructions), technical specifications, etc. ; The contractor's quotation documents, including various project budgets and other materials as the basis of quotation, such as environmental investigation materials, pre-bid meetings and clarification meetings, etc.
2. Correspondence (letters, emails, etc.). ), such as the owner's change instructions, various approval letters, notices, replies to the contractor's questions, etc. Please note that discussion letters and letters of intent cannot usually be used as change orders or contract change documents. During the execution of the contract, the contractor shall promptly request written evidence for oral instructions, faxes, emails, etc. Opinions of the owner and engineer and opinions on handling engineering problems. The envelope of the letter should also be sealed, and the postmark on the envelope records the exact date of receipt and delivery, which plays a role in proof.
3. Minutes of various meetings. The written reply of the owner to the contractor's questions at the pre-bid meeting and the pre-award clarification meeting, or the minutes of the meeting signed by both parties; During the execution of the contract, the owner, engineer and contractor hold regular meetings to study the actual situation and make resolutions or decisions. They can be a supplement to the contract. However, the minutes of the talks must be signed by all parties to have legal effect.
4. Construction progress plan and actual construction progress record. Including the general schedule, detailed schedule approved by the owner's engineer after construction, monthly schedule modification plan, actual construction schedule record, monthly schedule report, etc. This is not only the construction sequence of the project, the duration of each process, but also the arrangement plan and actual situation of the procurement, ordering, transportation and use plan of labor, management personnel, construction machinery and equipment, on-site facilities and materials.
5. Engineering documents on the construction site, such as construction records, construction memoranda, daily construction reports, work diaries of foremen and inspectors, construction records filled out by supervision engineers and various visas, etc. They should be able to comprehensively reflect various situations in engineering construction, such as the quantity and distribution of labor, the quantity and use of equipment, progress, quality, special circumstances and treatment. Various engineering statistics, such as weekly, ten-day and monthly reports. These reports usually include the comparison between actual and planned progress, actual and planned costs, quality analysis reports, contract performance evaluation, etc. During this time until the end of this time.
6: Engineering photos. Such as photos showing the progress of the project, photos before the cover of concealed works, photos of rework and engineering damage caused by the owner's responsibility, etc.
7: Meteorological report. If you encounter bad weather, you should make a good record and get an engineer visa.
8. Various inspection and acceptance reports and technical appraisal reports in the project. Engineering hydrogeological exploration report, soil analysis report, cultural relic fossil discovery record, geological bearing capacity test report, concealed engineering acceptance report, material test report, material equipment unpacking acceptance report, engineering acceptance report, etc. , can prove the quality of the project.
9. Handover records of the construction site (handover date, site leveling, water, electricity, roads, etc.). ), drawings and handover records of various materials shall be indicated. The records and certificates of power failure, water stoppage and road opening and closing in the project should have the engineer's visa. Both parties to the contract should have certain procedures and special records for the handover of various documents and materials in the project process to prevent loopholes and unclear expressions in the handover process.
10: Records, vouchers and reports on procurement, ordering, transportation, entry and use of building materials and equipment.
1 1: Market information, including market price, official price index, wage index, foreign exchange rate of the central bank, etc.
12: Various accounting data. Including: payroll, salary report, project bill, all kinds of original income and expenditure, general ledger, management expense report, project cost report, etc.
13: Other evidential materials and normative policy documents that meet the requirements of national laws.
Fourth, the principle of claim:
Based on the contract, timely and reasonably, actively control and reduce losses, coordinate compensation, and consider the final actual losses as the analysis basis.
V. Claim process:
Claim documents for intransitive verbs:
Claim documents include: claim (notice of intention), claim report and attachments, in which the claim report includes: general statement, basis part, calculation part and evidence part.
I believe that after the above introduction, everyone has a certain understanding of the methods and common causes of construction claims. Welcome to Zhong Da for more information.
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