At the same time, it further proves that there is indeed an increase in the quantities.
Therefore, for the determination of the completion time of this case, December2005, when a actually occupied the project plant, should be taken as the completion date.
For the increased quantities, construction unit B has increased the quantities according to the actual construction needs on the basis of completing the quantities under the contract.
In october2005, the project undertaken by B entered the closing stage as scheduled, but a was eager to put into production for trial use, and began to use some of the completed plants and equipment before the project was completed.
After accounting and confirmation by B, C and the supervision company, the project price for the increase of some quantities is RMB 2.6 million.
As long as there is evidence to prove that the increased quantities are approved or ratified by the owner, it is entitled to require a to pay the additional project funds.
At the end of December, 2005, a fully accepted the plant project, but the completion acceptance of the whole project has not been carried out.
How to identify engineering quality problems? 3.
The project payment in arrears refers to that the employer fails to pay the project payment according to the contract or settlement report during the construction project, resulting in the project payment in arrears to the contractor, and the contractor defaults to the subcontractor.
In addition, other quantities have been added according to the actual needs of the plant construction.
That is, the total contract price is 68.7685 million yuan.
As for the quantities within the contract, according to Article 22 of the judicial interpretation of engineering construction, “the parties agree to settle the project price at a fixed price, and one party’s request for appraisal of the construction project cost is not supported”, then the lump sum price of 68.7685 million yuan for the project funds involved under the contract is the basis for the settlement of the project funds, There is no legal basis for owner a to unilaterally entrust a third party to re appraise the project cost under the contract.
In this case, B’s on-site visa was not standardized, and there were major flaws in the effectiveness of evidence, which was an important reason for settlement disputes.
A issued a cost evaluation report on the project involved by an engineering project management consulting Co., Ltd., and put forward three defense reasons: 1) the original quantities agreed in the three contracts were deleted in the actual construction, 2) the increased quantities did not exist, and 3) there were problems in the project quality.
Later, B filed a lawsuit with a to require a to pay the project payment and interest due to the dispute with a over the completion time and project price.
After that, a and B signed two supplementary contracts respectively, adding the sewage pool, sewage oil pool, temporary roads in the plant area and other projects outside the original contract.
In view of the above problems, in order to prevent and reduce disputes over the settlement of construction project funds, the construction party needs to establish a sound and effective legal risk monitoring mechanism, establish an enterprise legal adviser system, and allocate project legal advisers or project legal managers..
the “completion date”? The “unauthorized use” in the judicial interpretation refers to the use of the project by the employer when the project has not passed the completion acceptance or the completion acceptance is unqualified, even if the employer uses the project with the consent of the contractor, it shall be deemed as unauthorized use.
The contract prices were RMB 4085 and RMB 5million respectively.
However, since one of the visas bears the official seal of owner a and the personal signature and comments of employee C, it can be proved that C is the authorized representative of a and has the right to confirm the on-site construction quantities and project funds.
The on-site visa is 20 “engineering construction contact list” or “contact list of increased quantities”.
How to determine the completion time if the employer uses the project in advance without formal acceptance procedures? 2.
Of the 20 visa documents, only one is jointly confirmed by the seal of company a and the signature of its staff C, and the rest is only confirmed by the signature of individual C.
As for focus 3, there are two issues involved: the quantities in the contract and the increased quantities.
With regard to focus 2, Article 13 of the judicial interpretation stipulates: “if the construction project has not been completed and accepted, and the employer uses it without authorization, and claims rights on the ground that the quality of the part used does not meet the agreement, it will not be supported.” Therefore, based on the identification of the focus 1 issue, a’s plea that there is a problem with the project quality involved should not be supported.
[focus analysis] the focus of dispute in this case: 1.
How to identify the actual quantities of the project involved? With regard to focus 1, Article 14 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (hereinafter referred to as the judicial interpretation) stipulates that “if the construction project has not been completed and accepted, and the employer uses it without authorization, the date of transfer of possession of the construction project shall be the date of completion.” How to identify “unauthorized use”? Which time point shall be taken as the “date of transfer of possession”, i.e.
They fully reflect the common settlement problems between the construction party and the construction party, and also expose the weak legal awareness and risk prevention awareness of the construction party.
[lawyer’s reminder] the above-mentioned cases are only representative of many construction contract disputes in China.
After the contract was signed, B completed the construction as scheduled and completed the construction obligations agreed in the original contract and the supplementary contract.
They do not pay attention to the project completion acceptance and completion settlement, and there are deficiencies in the project construction and management, such as improper management of project data, Failure to submit the completion report and relevant materials to the owner for signature, resulting in a dispute over the completion time; The visa work is not standardized, which leads to the dispute over the quantities of works, and thus leads to unnecessary litigation.
This paper introduces a very typical case of the construction party suing the construction party for defaulting on the construction project payment, which is of great practical significance, and hopes to provide some reference for the construction enterprises to strengthen the construction management.
[introduction to the case] as the employer of the construction project, the owner company a signed the construction project construction contract with the construction contractor company B, which agreed that B should undertake the civil works of the gas turbine power plant of company a, with a total contract price of 63.36 million yuan.
