What are the risks of cost control in decoration site? You will understand after reading it.

First, the time limit for a project dispute-the most common dispute in the construction contract.

Case introduction: The owner of XXXX Building claims a loss of 5.27 million yuan during the construction period. The general contractor claimed a penalty of more than 9.9 million yuan for the construction period. Passive project payment: For example, Suzhou Second Construction BenQ Project and Golden Mantis Yangzhou Times Square Project, the solution is to apply for a time-limited visa.

The basis of time limit for a project visa:? Clauses on the extension of construction period in the contract (***2 1 clause); ? Construction progress plan (according to the contract time limit for a project or the general contractor's schedule requirements, make a scientific and feasible detailed schedule plan for decoration engineering).

Key process line

A. control the construction period according to the schedule. Hold a project meeting at least once a week to analyze whether the construction period is out of line and its reasons (self-reason, owner's reason, other unit's reason, subcontractor's reason and other claimable construction period reasons).

B. According to the above analysis, take corresponding measures.

Self-reasons: internal coordination, strengthening supply, improving management level, scientifically arranging process overlap, and reducing staff slowdown;

Owner's (general contractor's) reasons (see Article 2 1 for details) and auxiliary materials.

Other reasons for the Owner (or General Contractor) to sign another contract:

Such as: Huaihai Jinghuayuan-occupied working face, overlapping working procedures, delayed construction period, damaged rework, etc.

Other reasons: such as government requirements-shutdown during SARS, college entrance examination and important meetings (Zhuhai Air Show); Adjustment of laws and regulations (mandatory working hours); The influence of objective conditions-weather, water and power cuts, etc.

Measures: apply for extension of construction period and apply for construction period visa;

Subcontractor's reason: strengthen subcontracting management and claim the construction period from subcontractors.

Problems needing attention in time limit for a project visa:

A form of visa: a visa is similar to a supplementary agreement, so a visa should have the relevant elements of the agreement. (Example: Huaihai Jinghua Garden Shutdown Visa) Visa Subject: Who to claim; Main delivery and cc; Causes and facts that lead to the extension of the construction period and the need to increase the contract construction period (only need to explain);

For example, delay in providing drawings (the signing time specified in the drawing signing sheet).

The engineer (supervisor, owner's representative) shall postpone the approval (reporting time, approval time).

Design change (quantity and content of design change documents; Analysis of the impact on key lines).

Weather reason (weather report);

Water and electricity (notice of water and power cut by relevant departments and its influence on construction); Deferred payment (payment term agreed in the contract, actual payment time); Contract or legal basis for extending the construction period (specific contract terms or legal provisions); The number of days required to postpone the construction period (clear); Calculation basis (comparison between construction progress plan and key lines); A reasonable reply time (reply on 28th) is regarded as the default clause (failure to reply after the deadline is regarded as the default).

B, visa extraction, receiving, delivery and extension of time limit for a project visa processing should be completed within the time limit stipulated in the contract; If there is no prescribed time limit, it generally does not exceed 7 days; (conducive to the supervision owner's review and confirmation) in quadruplicate, one for the owner, the general contractor, the supervisor and myself; Owner's signature (document signature book; The receipt column on the official document) fax, and keep the fax certificate; Express delivery, keep the voucher; Notary service, keeping notarial certificate.

C. visa skills: public relations channels; Avoid heavy and light; Pay attention to the extension of prescription.

D legal form of visa: how many days is the extension of the construction period approved by the claimant?

E legal effect of visa: once approved, it is binding on both parties.

Relationship between claim for construction period and claim for expenses

Owner (general contractor) reasons:

Forgive but compensate-the claim period of key lines is affected, and the extra expenses should be compensated.

Belong to objective reasons:

Deductible-the construction period can be extended for free (force majeure, power failure and water stoppage).

Claim report

1, writing skills

1, writing skills (16 words): the incident is true and the evidence is conclusive; Clear analysis and reasonable calculation; The text is concise and thorough; Discuss item by item, with clear hierarchy.

2. The contents of the claim report include

Form: the beginning (preface)

Summary of claim (background information, reasons)

Specific claim: extended days and claim amount;

Signature: preparer, approver and issuer.

Overview of claim: the occurrence and handling process of claim; The time when the notice of intention to claim is issued; Citing the contract terms or legal provisions of the claim; Indicate the attached evidence.

Claim calculation part

Basis for calculation of construction period: planned construction period, critical route, actual delayed construction period and delayed days.

Cost calculation basis: days of delay, daily loss (labor costs, equipment and machinery idle costs, management costs (project management costs, company management costs).

Claim calculation part:

Attachment: Relevant evidence-factual evidence, calculation evidence, delivery of claim report-pay attention to the provisions of Article 36.2 of the contract (the premise of using this clause is that the construction party puts forward it within 28 days). Therefore, the obligation of the construction party is to deliver the report, and whether it is approved or not is not very important.

General procedure of claim

Intention to lodge a claim-simply present facts and requirements, without analysis and relevant evidence, with a euphemistic tone (14 days, 28 days); Submit claim information (28 days);

Supplementing relevant information according to the requirements of the owner; In the process of negotiation, reach an agreement or apply for a visa; Bring a lawsuit or arbitration.

Second, the quality dispute

Provisions of judicial interpretation on handling quality disputes (Articles 1 1, 12, 13, 15)

Establish the following concepts: the responsibility for construction quality shall be borne by the construction party, and the quality qualification is the prerequisite for obtaining the price (Article 279 of the Contract Law, the employer shall pay the price according to the agreement if it is qualified); Unless:

1. The designer commissioned by the owner is wrong or defective (case: Linhai Jieheng Arts and Crafts Factory Project).

2. The quality of materials, equipment and components supplied by Party A means that Party B does not meet the mandatory standards (for example, the precast piles supplied by Party A do not meet the national mandatory standards after testing); Note that the prohibition does not meet the national mandatory standards, which belongs to the category of product quality problems, and does not refer to problems that can be found through normal inspection and testing. (Article 59 of the Building Law stipulates that the construction unit must inspect the building materials, components and equipment, and unqualified materials and equipment shall not be used. Therefore, materials and equipment supplied by Party A and materials and equipment supplied by Party A and Party B must be inspected. If it is used in the project without inspection, even if there is a problem with the product quality, the construction unit will bear the main responsibility. For materials and equipment designated by Party A, relevant evidence of "designation" shall be kept.

3. Where Party A designates subcontracting, it shall bear corresponding fault liability. Note that Party A only undertakes a small part of the responsibility, and the quality responsibility of the subcontracted project shall be borne by the subcontractor first.

4. Without acceptance, if the owner uses the project without authorization, the project quality responsibility risk will be transferred to the owner except for the reasonable service life.

Within the quality responsibility of engineering foundation and main structure, other quality responsibilities are decoration quality responsibility (that is, the owner's future responsibility).

Do not claim rights on the grounds that the quality of the project used is defective or does not conform to the contract: liability for breach of contract,

Compensation, repair).

A few specific questions:

1, about one-time acceptance.

(1) If the contract requires one-time acceptance, if it fails to meet the requirements, it is a breach of contract and shall bear the liability for breach of contract agreed in the contract; If the contract does not stipulate the liability for breach of contract for this consequence, the construction party will only bear the responsibility for the delay of the construction period.

(2) The contract stipulates that one-time acceptance is qualified, and the liability for breach of contract is stipulated. If it fails to pass the one-time acceptance, it will bear the liability for breach of contract agreed in the contract.

Matters needing attention: notify the owner to organize acceptance after passing the self-inspection;

The completion acceptance certificate shall reflect the acceptance; Except for rectification;

2. The difference between completion acceptance and quality supervision station acceptance, comprehensive acceptance of projects, acceptance of small business owners and property companies.

A completion acceptance-acceptance of the project within the scope of the contract.

Precautions:

Legal evidence-completion acceptance certificate;

After the completion of the project within the scope of the contract, report the project completion report in time, indicating that the project within the scope of the contract has been completed, and request acceptance. If the owner refuses to accept the project because the whole project is not completed, this completion report can prove that the project we built has been completed.

B. Acceptance of Quality Supervision Station-Quality Supervision Station is the government department responsible for project quality supervision. It is not the subject of project acceptance in the construction contract, because it conducts spot checks on the project and supervises the acceptance procedures according to the provisions of laws and regulations.

The owner claims that the project has not passed the acceptance of the quality supervision station, and there is no legal basis.

Countermeasures: report the completion report in time and ask the owner how long to organize the acceptance. In the future, the owner can take the responsibility of not timely acceptance as a defense.

(3) The legal nature of the acceptance of small owners and property management companies-it belongs to the handover stage, because it is regarded as a handover project. The owner performs the house sales contract and delivers the house, and the builder cooperates to perform the warranty responsibility. Before the acceptance, the owner should refuse the cooperation of the community owner and the property management company.

(4) The regulation of one household and one inspection-development trend.

3. Handle the project handover procedures.

Legal consequences of project handover (transfer of possession, transfer of risk, transfer of custody responsibility).

If the owner fails to accept the goods within the time limit, a letter will be sent to remind him that the storage expenses shall be borne by the owner, and the risk liability shall be transferred upon notification of handover.

Evidence of project handover: handover list (book) and key handover list.

If the handover procedures are not completed, there should be evidence of transfer of possession: who controls the project and who owns the project (photos, videos, changes of guards, etc.). ).

4. Completion date and acceptance date

Judicial interpretation on determining the completion date (Article 14): This article adopts the case that the completion date is disputed. If the completion date is not agreed or specified-the date of acceptance-the date of submission of the completion acceptance report by the Employer is delayed-the date of unauthorized use, the date of transfer of possession. Therefore, it must be made clear in the contract that if the project experience is qualified after the contractor submits the acceptance report, the report date shall be regarded as the completion date. (The time for organizing acceptance is not included in the construction period);

The completion acceptance report refers to the acceptance application report submitted by the contractor to the Employer.

5. Completion report and completion acceptance certificate

Completion report, when the actual completion date of the project is determined, the completion report shall be submitted as far as possible within the extended time limit stipulated in the contract and approved by the visa;

Completion acceptance certificate, the legal certificate that the project has passed the acceptance. Pay attention to fill in all contents (completion date, acceptance date, reasons for delay in construction period, etc.). ). In particular, all units are required to fill in the acceptance opinions such as "Agree to Pass the Acceptance" and "Pass the Acceptance". Try to avoid "agreeing to accept".

Third, the cost dispute.

1. Disputes caused by unclear agreement

(1) The nature of the contract price is not clear. Unit price lump sum or total price lump sum (case: steel structure project of Auchan Yangpu Store; Fixed total price of ore screening plant+adjustment of steel bar content)? Settlement on time or quota+fee lump sum?

(2) Can the fixed price be adjusted? According to the contract, the general design changes and the increase or decrease of engineering quantity will be adjusted. Others will be adjusted according to the actual situation, if not, although there is no agreed adjustment.

(3) Real settlement is an industry term, not a legal term, and "real" should be used as far as possible to express how to settle accounts. Is the engineering quantity based on reality and the price fixed? Or are the quantities and prices adjusted and settled according to the market price or information price? Where and when are the quotas used? How to price the subtitle that is not within the quota (case: the dispute between soil nailing and anchor rod in Zhuhai)? How to determine the market price?

(4) The scope of the contract is unclear and controversial. Render the contract; Different consequences of construction drawing contract, preliminary design drawing contract (detailed design is carried out by the construction unit), bill of quantities contract and bill of quantities contract; (Case: Huating Hengmu Square Steel Company; 7% material consumption contract).

(5) The brand and grade agreement of materials and auxiliary materials are not clear (case: decoration of Jiucheng Complex).

(6) The terms of payment are unclear or vague. "completed project cost", "accumulated project cost", "completed project price in the current month", "contract price", "total project price" and "70% paid")

(7) The settlement procedure is not clear, and there is no agreed way to delay settlement. Only "payment after settlement" (submit settlement report and settlement data; Audit; Objection handling, review period and overdue handling are regarded as default terms (Document No.369 of Ministry of Construction and Ministry of Finance).

2. Failure to apply for visa change during the construction process is another main reason for the cost dispute.

(1) After the owner issues the change order, does the construction party have the right to refuse to implement the change before reaching an agreement on the change price?

Agreement in the domestic 99th edition contract: Article 29, Article 3 1, without explicit agreement.

International FIDIC version, there is no relevant explicit provision.

According to the principle of contract law, the project change belongs to the change of contract, and the owner has the right to change the project, but the change price must be agreed. Therefore, we believe that if the owner does not reply to the change price report of the construction party, the construction party has the right not to implement the change, and the time limit for implementing the change in the future can be postponed; If the owner gives a reply, but the approved price is not agreed by the construction party, it is a price dispute, and the construction party should implement the change after the owner approves it, but if there is any objection to the price, it will be settled at the time of settlement.

(2) The change instruction given orally by the owner shall be confirmed in writing, and the change shall be implemented after being confirmed by the owner. If the owner refuses to confirm, he shall refuse to change (case: Zheng Sifang Iron and Steel).

(3) When will the change price be paid? The 99 version of the contract stipulates that it shall be paid at the same time as the project price after confirmation by the owner. You can ask the owner to pay the confirmed part first, and leave the disputed part to be settled at the time of final accounts. If there is no agreement to pay in the same period, if the change involves a huge amount, the early construction will lead to advance payment, so the owner may be required to pay in the same period according to the proportion of the project payment (case: Kangqiao Water Town). If the contract has clearly agreed to pay the change price at the time of settlement, the construction party has no right to ask the owner to pay in advance.

3. Other matters that should be confirmed in the construction process, and the failure to go through the confirmation procedures are also the reasons for the cost dispute.

Such as: material price, hourly workers (such as general electric engineering), non-one-time start-up expenses, etc.

Four. Settlement of disputes

1. Submitting complete settlement data is the prerequisite for the contractor to request settlement; It is very important to sign the settlement data and transfer the data list (case).

Settlement report.

2. What if the owner delays the settlement?

If the time limit for the owner's audit and settlement is not stipulated in the contract, it shall be promptly urged and given a reasonable time limit. If it has not been concluded within 5 months after the completion acceptance, it shall bring a lawsuit to the court as soon as possible and determine the expenses through judicial appraisal to ensure the realization of the priority right of compensation.

3. What if the settlement is controversial? Confirm the uncontroversial part, leave a pit for the controversial part, and decide whether to sue for rights protection according to the situation in the future. It can avoid excessive litigation standards, narrow the scope of judicial evaluation (Article 23 of the Judicial Interpretation) and reduce litigation costs (cases: Greenland Zhongfu Garden, East China Sea Engineering Bureau Yihe Jiayuan, Suzhou Park Tingtao Road).

Five, the project payment reminder

1. Advance payment (material preparation)

If the contract stipulates that there is advance payment, the work can be stopped if the advance payment is not in place; If the advance payment is in place, the materials should be fully prepared, otherwise the owner will not bear the losses caused by the increase of materials.

2. Progress payment

The owner pays the progress payment according to the agreed time and proportion, which is the condition for the project to be completed on schedule and ensure the quality. The project department is responsible for settling the progress payment. Report the payment application on time, send a reminder immediately after the deadline, give a reasonable time limit, stop work if you don't pay, and claim for the loss of work stoppage. Can fight the progress payment lawsuit (balance of interests). All progress payments shall be settled after the project completion acceptance and before the project handover. You can take the means of not handing in the project (key) to force the owner to pay off (but be reasonable and send a letter).

3. Settlement payment

For the settlement funds that have been in arrears, it is necessary to increase the dunning efforts. Limitation, dunning letter, lawyer's letter, organization of door-to-door dunning, timely litigation, priority of compensation (six-month limitation).

Supplementary agreement of intransitive verbs and meeting minutes

1, the legal nature and legal consequences of the supplementary agreement

2. Signatory organ of supplementary agreement:

Signing authority can be stipulated. In the contract, it should be noted that any supplementary agreement involving the main rights and obligations such as contract price, construction period and quality standard must be signed by the company as a legal person, and the agreement of this nature signed by the project department will be invalid unless the company ratifies it.

3. The effectiveness of the material purchase contract, turnover materials and equipment lease contract signed by the project department or the project manager (case analysis, the consequences are usually handled by the judicial organs, suggestions: disclosure-clear contract authorization; Internal: risk of mortgage, responsibility form, assessment methods, rules and regulations; Basic-dynamic management).

4, the nature of the meeting minutes; What form of meeting minutes has legal effect?

5. Matters needing attention in meeting minutes:

After receiving it, raise objections to the content that you disagree with in time; The contents of the meeting minutes involving the changes of the main terms of the contract shall be subject to the supplementary agreement signed by both parties (case: Meeting Minutes of Huaihai Jinghuayuan on the Construction Period Nodes and Overdue Liquidated Damages).

In order to prevent the project department from exceeding its authority in the minutes of the meeting, it can be indicated in the contract that the main rights and obligations of the contract discussed at the meeting must be confirmed in the form of a written supplementary agreement after the meeting, otherwise it will be invalid.

Seven, jilt a project and shutdown matters needing attention

1, dump a project:

(1) can reduce the amount of liquidated damages for construction delay.

(2) Sign relevant supplementary agreements and handle the project handover procedures.

2. Stop working:

(1) When the owner requests to stop work, there should be a stop work order and a resumption work order; If there is no instruction, a supplementary agreement shall be signed as required to negotiate and agree on the matters involved in the shutdown;

(2) Apply for extension of the construction period immediately after the shutdown, and claim for shutdown losses;

(3) If the owner fails to pay the project payment, the construction unit shall notify the owner in writing, and attach the calculation data of possible losses caused by shutdown;

(4) During the shutdown, if there are any changes in the number of people, mechanical equipment and turnover materials that should be reported every day, please ask the supervisor for confirmation in time;

(5) During the shutdown period, if the owner requests to evacuate some personnel, equipment and machinery in order to reduce losses, he shall claim for severance payment. If the equipment and machinery enter or leave the site for the second time, the owner will be required to bear the cost. If it is decided not to withdraw, the owner will not bear the increased losses.

(6) During the shutdown period, reasonable protection (extended obligation) should be made for the project, and the expenses can be claimed.

(7) If the shutdown time exceeds three months (as agreed in the contract), it is suggested to terminate the contract unilaterally, but leave some personnel stationed at the construction site. Complete the settlement as soon as possible and confirm the priority of compensation.

Eight, data collection, collation and evidence rules

Rules of data collection, collation and evidence

1. About the original: red seal, fax, riding seal and accessories.

2. About signing the contract.

3. About the collection.

4, the specialist is responsible for.

5. Timely feedback.

6. Performance tracking.

Nine. Interpretation of some clauses in judicial interpretation

1, Article 1 of judicial interpretation: the validity of the contract.

2. Article 2 of judicial interpretation: The contractor requires compliance.

3. Judicial interpretation of Article 6 on advance payment: define advance payment and support interest; If there is no provision, it shall be handled according to the arrears of the project, that is, if it is overdue, interest will be supported, and if it is not formed, interest will not be supported. (Case: International Clothing City and Jinchang Moore Building).

4. Subcontracting problem: marble, floor tile, floor tile and paint paving problem (illegal subcontracting, the contract is invalid, but the quality is qualified. Settle the price as agreed).

5. Judicial Interpretation Article 20 Settlement is regarded as the default condition-there is an agreement in the contract, and the way of agreement: direct agreement: the applicable documents and the provisions of the completion settlement clause stipulate the ministerial regulations and document No.369.

6. Judicial Interpretation Article 21: Contracts in black and white.

(1) respectively: before winning the bid, during winning the bid, after winning the bid and during construction.

Black and white situation: the white contract price is high and the construction period is long, which is beneficial to the construction unit. In case of dispute, the contract price can be overturned through judicial interpretation.

The white contract price is low and the construction period is short, which is unfavorable to the construction unit. When signing a high-priced black contract, we should pay attention to the skills: time difference (a period of time apart), content difference (for what situation), and at the same time, we should pay attention to reflecting the actual contract performed by both parties in other documents.

(2) The meaning of "bid-winning contract after filing": "bid-winning" refers to the bid-winning of the project that must be included in the bidding scope according to Order No.3 of the National Development and Reform Commission (open bidding and invited bidding), but the bid-winning in the non-bidding sense is to safeguard the dignity of the bidding law. If the result of winning the bid is modified at will, the bidding will be meaningless. Therefore, not all filing contracts belong to the scope of application of Article 21 of the judicial interpretation;

(3) "Taking the bid-winning contract on record as the basis for settlement of the price" means that all the contents of the black contract are not overturned, but only the substantive contents of the three contracts of project cost, construction period and quality are overturned. As for whether the payment method is applicable to the winning contract, there is no unified opinion at present, and this paragraph is generally not applicable.

7. Judicial Interpretation Article 23: Handling of disputes over facts of a case. The countermeasure is to determine the uncontroversial content in time in the settlement, and the controversial part can be solved through negotiation and litigation, so as to avoid re-evaluating the price as much as possible.

8. Judicial Interpretation Article 25: If the Employer raises a quality dispute, the construction unit may apply for adding the actual constructor as the defendant, so as to settle the dispute once and for all (case: Ding Yong Project).

9. Article 26 of the Judicial Interpretation: Legal Status of the Actual Constructor

The actual construction party can directly file a lawsuit with the owner (if there is evidence to prove that it is the actual construction party), and the owner will only bear the responsibility within the unpaid scope. In the future, the actual construction party (the subcontractor) can be mobilized to bring a lawsuit directly to the owner (to avoid offending the owner).