1, case summary

1992, the author's company contracted a 266-kilometer World Bank loan road reconstruction project in a country in Southeast Asia. The content of the project is to transform the disrepair road into asphalt pavement road, and the winning contract price is 44.69 million US dollars. The project is divided into two contract sections: Contract I, 150km, with the winning bid of 28.48 million US dollars; Contract II116 km, with the winning bid amount of 162 10000 USD. The construction period starts on February 8th 1992: Contract I 1620 days (1996 expires on July 5th); The second contract is 1330 days (1995 expires on September 29th). This project is based on FIDIC contract conditions. The design director is an international consulting company, and the owner is the Ministry of Construction.

During the implementation of the project, a series of claims occurred due to the increase and change of a large number of projects, mistakes in bidding and providing materials, bad weather and various unforeseen unfavorable external obstacles. Although we claim for compensation from engineers and owners every time. However, due to the owner's investment gap (the loan was only $8 million when the contract was awarded, and a large number of projects were increased and changed by about $6 million, and the claim fee was X), the control was very strict; Many claims involve the design problems of consulting companies. Therefore, a series of claims have not been resolved. By 1994- 19/95 dry season (this year 10 to June next year): the construction period of the first bid section has exceeded 60%, but the progress is only 30%; The construction period of the second bid section has passed 73%, and the progress has only been completed 35%. Obviously, it is unrealistic to complete the project according to the contract time limit. The reasons are: first, there are a series of claims, and second, our lack of resources in the early stage has also affected the progress. The two reasons are intertwined, the owners and engineers deliberately delayed, and finally, when it comes to settlement, a series of claims have evolved into a package of claims.

2. The claim for time limit for a project was successful, but the claim for expenses was lost.

Under the coordination of the coordinator of the World Bank, the owner and the engineer agreed to summarize a series of our claims and report them in packages, and requested that the construction period and expense claims be reported together. We realized that the owner might have to agree to an extension to curb the claim for expenses, and decided to take the countermeasures of the construction period first and then the expenses. First, we submitted a time-limited claim report. In the report, according to the contract documents, we fully demonstrated that Contract 1 (6 items) and Contract 2 (8 items) have the right to extend the construction period, provided conclusive and necessary evidence, and calculated the claim days of the construction period by using network analysis method, progress comparison analysis method and work efficiency conversion method respectively as follows: Contract 1 is 394 days; The second contract is 559 days. We have made great efforts to fully prepare the expense report so that it will not be quoted.

Around the claim for construction period, we launched a comprehensive public relations work, analyzed and found out the attitudes of the World Bank, the owners and engineers to the extension, focusing on the owners. After nearly two years of repeated efforts, we have won the support of the owners and the understanding of the World Bank and engineers. In the final negotiation, the engineer put forward the review opinions and suggested to the owner to extend the first contract for 320 days (1May 65438+31); Contract II was extended for 549 days (1expired on March 3, 19971day). Based on the situation of the two contract sections, the owner finally decided to extend the contract as follows: Contract I has 289 days and Contract II has 579 days, both of which will expire on April 30th. 1997. The coordinator of the World Bank stressed that the contractor should formally report the package of cost claims before signing the extension agreement. The World Bank loan accounts for 95% of the investment in this project. As long as the World Bank opposes it, it can't be done. In view of this, we informally provide a set of expense reimbursement reports to the coordinator of the World Bank for his review. The report involved 65,438+03 expense reimbursement, with a claim amount of $8.7 million. There are three main motives: first, the actual engineering quantity has increased more than usual. For example, the surface layer of 300mmmm subgrade exceeds BQ engineering quantity 10 times, and the bidding time of this unit price is short, and the amount involved does not exceed 2% of the contract price. Unable to adjust the unit price according to the contract, but it did cause losses to the contractor; Second, the quarry provided by the tender is wrong; Third, the owners and engineers made mistakes in instruction and design. The coordinator does not object to the latter category (unfortunately involving a small amount of claim costs), but clearly disagrees with the first two categories. We also know that the first category is moral appeal, but the second category is deadlocked: the coordinator thinks that the material yard provided by the tender is for reference only, and the tender announcement stipulates that the bidder is deemed to have understood the site situation, and the experienced contractor should be able to find the yard error; On the other hand, we don't think that the consulting company has found any yard mistakes in the field design for two or two years, and we can't ask the contractor to do better than the consulting company in a short bidding period. Moreover, the bidder has no ability during the bidding period, and it is not necessary to conduct a comprehensive test and analysis of all the yards. Therefore, even experienced contractors can't foresee external obstacles, which should be implemented in accordance with Article 12.2 of the contract conditions.

The basic idea of the "owner" is that giving an extension is equivalent to giving a fee. In this case, we didn't directly put forward the claim calculation sheet and the required amount, in order to make the package fee claim hopeful. However, in the dispute over the terms of the extension agreement, the World Bank and the owner insisted on preventing the claim for other expenses except price adjustment. Through bargaining, we got 5% retention money back by letter of guarantee, and the conditions for special handling of the claim for 20 # bridge cost (the geological conditions changed and later evolved into a lump sum agreement). In fact, the owner did not pursue the problem that our lack of resources in the early stage affected the progress of the extension, so we had to compromise. The terms of the extension agreement prevent the claim for expenses, specifically as follows: "Generally speaking (the reason for the extension proposed by the contractor) and all other problems or claims of any event that the contractor has raised to the engineer or the owner so far or should have raised, both parties agree ... (specific extension terms)", and finally add the restriction that the contractor has no right to claim any subsequent claims.

3. Case analysis

In this case, the contractor obtained the most needed extension of the project. Without this condition, the implementation of the contract will encounter immeasurable obstacles, so the contractor is successful. It is reasonable that the reimbursement of package expenses fails. From the perspective of game theory, when given the strategy adopted by the other party, the other party can only use some strategy to maximize the benefits, and any change in strategy can not further improve his income. In this case, the World Bank and the owner's strategy of "giving an extension is equal to giving a fee" determines that the contractor's strategy of taking the construction period first and then asking for the fee can not change the failure of the package fee claim, but benefit from bargaining, so the contractor's choice is correct. The failure of the claim also shows that this claim method is not easy to succeed even if it is forced to claim, and the contractor should try to avoid it. In addition, although the contractor compromises, it does not hinder his right to further request arbitration or legal settlement.