What is the procedure for determining the final price of temporary appraisal professional projects?

1. Temporary appraisal professional project subject to compulsory bidding

According to Article 5 of the Regulations on Tendering Projects, a construction contract with an estimated price of more than 4 million yuan for a single project must be subject to tender. If the general contractor participates in the bidding of the temporary appraisal professional project, the employer who bids for the first time will organize the bidding to determine the contractor of the temporary appraisal professional project (but priority should be given to the general contractor under the same conditions), and the construction contract of the professional project will be signed by the first tenderer and the winning contractor, and the first tenderer will settle the project price between the temporary appraisal professional project and the winning contractor; If the general contractor does not participate in the bidding of the temporary appraisal professional project, the general contractor shall organize the bidding to determine the contractor of the temporary appraisal professional project (but the proposed bidding documents, bid evaluation work and bid evaluation results shall be reported to the Employer for approval), and the professional project construction contract shall be signed by the general contractor and the winning bidder, and the general contractor shall settle the project price between the temporary appraisal professional project and the winning bidder.

2. Temporary appraisal professional projects without compulsory bidding.

According to 13 version of Bidding Specification, the final price of temporary appraisal professional projects that are not subject to compulsory bidding is determined according to the provisions of engineering changes.

3. Temporary valuation of professional engineering subcontracting

In practice, it should be noted that the employer can dismember the project within the scope of general contracting on the grounds of temporary evaluation of professional projects, and subcontract the temporary evaluation of professional projects after separate bidding in violation of the contract or relevant regulations. An analysis of the case of construction contract dispute between Wuhan Shi Jian Group Co., Ltd. and Zaoyang First People's Hospital, which was first tried by Zaoyang People's Court and second tried by Xiangyang Intermediate People's Court.

The scope of works agreed by both parties in the construction contract includes: "According to the design drawings of the new operating building, civil engineering, water and electricity installation engineering, fire fighting engineering, ventilation and air conditioning engineering, etc. , the contents contained in the bill of quantities and all the engineering contents of the engineering design change project; Among them, the estimated items are: secondary renovation (3.8 million yuan); Power transformation and distribution (2.95 million yuan); Air conditioning project (7.4 million yuan); Fire sprinkler (2.65 million yuan); Weak current project (6.5438+0.3 million yuan); Weak current equipment (4.75 million yuan); Medical gas (2.75 million yuan); 8 sewage treatments (800,000 yuan) with a contract value of 26.4 million yuan. " During the performance of the contract, the employer and the contractor will jointly bid for the air conditioning project and the fire sprinkler project according to the relevant national regulations and the contract, and determine the subcontractor. The subcontractor of the power transformation and distribution project will be determined by the employer through consultation. However, for the five projects of secondary decoration, weak current engineering, weak current equipment, medical gas and sewage treatment, the employer carried out the bidding work without the consent of the contractor, subcontracted the above five projects and signed corresponding contracts with other construction units, involving a total contract amount of about 32.48 million yuan. The legal issues related to the temporary evaluation of professional projects in this case are analyzed as follows.

(1) The legal nature of five projects, namely, secondary decoration, weak current engineering, weak current equipment, medical gas and sewage treatment, shall be contracted by the employer alone. According to the theory of temporary appraisal professional engineering and the agreement of the construction contract in this case, temporary appraisal professional engineering is included in the scope of the general construction contract. Unless the general contractor participates in the bidding of five projects, the general contractor shall bid to determine the winning bidder of the temporary appraisal professional project. The employer's behavior of bidding and contracting alone first violates the contract, which is a breach of contract, and the general contractor has the right to claim the liability for breach of contract from the employer.

Secondly, the second paragraph of Article 24 of the Construction Law stipulates: "The contracting-out unit of construction projects may contract out the survey, design, construction and equipment procurement of construction projects to the general contractor, and may also contract out one or more of the survey, design, construction and equipment procurement of construction projects to the general contractor; However, a construction project that should be completed by one contractor shall not be divided into several parts and contracted out to several contractors. " In this case, the employer unilaterally excluded five professional projects within the scope of general contracting from the construction contract for separate contracting, which obviously violated the mandatory provision of the Building Law prohibiting dismemberment of contracting.

(2) The legal evaluation of the act of dismembering the contract and evading the bidding procedure in the form of temporary evaluation. Temporary appraisal of professional projects is allowed by law, but it also provides a cheap and "legal" form for the employer to dismember the contract, which is likely to slip into the prohibition of Article 4 of the Bidding Law: "No unit or individual may dismantle the project that must be subject to bidding according to law or evade bidding in any other way". In order to prevent tenderers from evading bidding for projects that must be subject to bidding, the Opinions on Strictly Regulating the Bidding Activities of State-owned Investment Construction Projects issued by the People's Government of Zhejiang Province stipulates: "Strictly control the temporary evaluation of materials and equipment set in the bidding documents. The materials and equipment that really need to be estimated must be supplied by the owner, and the total value of the estimated materials or equipment should reach the prescribed limit of bidding according to law, and ensure that the supplier can be determined through bidding in the future, otherwise it will be regarded as dismembering the contract and evading supervision. In principle, it is temporarily priced according to professional projects and partial projects. It should not be established. " This opinion establishes the principle that temporary valuation is not allowed for professional projects, which is an accurate regulation of engineering practice. However, in judicial practice, in order to solve civil disputes between contractors, there are no other sanctions except temporary evaluation of professional projects and investigation of liability for breach of contract according to the contractor's request to dismember the contract. Therefore, after such a breach of contract, the contractor should set the corresponding liability for breach of contract as far as possible. If there is no specific agreement in the construction contract, the contractor can only claim the actual loss and the loss of available benefits from the employer.

Specific to this case, due to the breach of contract by the employer, the contractor's bid budget loss, including transportation, drawing design, construction management, insurance and other expenses, as well as the general contracting service fee (calculated by 5% of the total subcontracting amount of five subcontracted projects) that should be enjoyed according to regulations, was finally supported by the court.

The author will elaborate on the effectiveness, settlement method and liability for breach of contract in the case of dismembering contracting and subcontracting.

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