[reproduced] all China Lawyers Association for construction project legal business operation guidelines

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  • / Author: Aaron Lewis

Suo Wenhai

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Chapter I General Provisions
1.1 making the objective
Develop guidelines on the operation of the objective system for regulating the lawyer handling the construction of litigation and non litigation legal services, improve the service quality and level lawyer for professional services, especially for the more lawyers to participate in the construction of legal service, to better safeguard the legitimate rights and interests of the client. The Civil Service Commission of the all China Lawyers Association, these guidelines are formulated based on the law for the construction of litigation and non litigation business experience, for reference for construction project in lawyer law business.
The 1.2 definition
Construction projects in the operating guidelines, refers to the civil engineering, construction engineering, pipeline and equipment installation and decoration, the decoration engineering.
Client: with engineering contracting qualification and ability of paying project parties and legal heir made the party's qualification;
The Contractor by the employer to accept: has the subject qualification in project contracting and qualified parties;
Construction contracts: the contractor for construction, the main contents of the employer to pay the contract price for the people the two sides of construction of the consensus protocol;
Sub project: to the contractor the project of non foundation and the main structure project as the object, by the chief contractor and subcontractor agree on a sub project of the rights and obligations of the agreement.
Subcontract the employer: can be contracted to its non main, engineering and non engineering services operations key engineering, professional construction of sub contractor.
Subcontracting engineering contractor: accept subcontracting engineering or labor working party with relevant qualifications.
The contract for construction projects: the subcontract works the contractor to subcontract project, subcontracting the employer to pay the contract price contract.
1.3 basic principles of the construction project lawyer to handle the legal business
For the construction of legal affairs of complicated characteristics of the lawyer business capacity requirements higher, a lawyer to handle the construction business should follow the following principles:
First, professional and responsible principle. A lawyer to handle the legal business of construction projects shall be assiduously, legal professional ability and level, corresponding to the familiar law professional and familiar with the characteristics of the industry, to provide accurate, responsible professional service for clients.
Second, loyal and trustworthy principle. A lawyer to handle the legal business of construction projects shall insist on the principal of loyalty, not two, in the contract, the total subcontracting and labor contractor between both sides, to accept only one Party Commission, and shall not be illegally interfered by any units and other organizations and individuals in the proxy process, the correct implementation of safeguard the lawful rights and interests of the client and the relevant laws and regulations of the state in accordance with the law.
Third, the principle of diligence. A lawyer to handle the construction business, should be based on the request of the parties involved in the business field of law and adapt to multiple and complex situation, dedication, diligent work, completion of the specific legal services in the client's request, the undertaking lawyer the commitment period of time.
The 1.4 basic requirements of construction lawyer to handle the legal business
A lawyer to handle the legal business of construction projects, should be set according to the client's signing and protocol specific service content and requirement, the authority to perform their duties, shall strictly implement the relevant provisions on the lawyer association to prevent conflicts of interest, and shall not harm the lawful rights and interests of the client; the parties shall keep business secrets and personal privacy, except in accordance with the relevant provisions shall apply to the judicial administrative authority about the case and has been compromised or declassified.
1.5 guidelines on the operation of the business scope
This guideline is mainly applicable to the lawyers engaged in the construction of non litigation legal services attorney client, engaged in construction project bidding, construction project contract management, project quality and project cost management and the whole process of construction project legal services can refer to this operation guide.
Lawyers acting for the client on construction of litigation, the operating guidelines are based on the specific circumstances of such business as guiding the corresponding operation rules, also has the reference function.

The second chapter of construction project bidding

Section 1 General Provisions
To provide legal services on the basis of 2.1.1
For the maintenance of the construction project bidding activities, protect the legitimate rights and interests of the tender, bidders, ensure project quality, improve the lawyer to handle bidding business legal service level, according to China's "Bidding Law", "construction law", "construction projects for the scope and scale standards", "architectural engineering bidding management methods", "housing construction and municipal infrastructure works bidding management approach", "construction project survey and design bidding", "construction project bidding" and related laws and regulations and judicial interpretations of the provisions of this chapter, making.
2.1.2 scope
The lawyer for the construction engineering survey, design, construction bidding and related legal service, refer to the contents of this chapter.

The second section bidding
Whether the 2.2.1 must tender review
According to the "Regulations of tender and Bidding Law" in article third, lawyers undertake construction project bidding legal service, should first identify the project scope client is must be open tender, and provide targeted legal services.
2.2.2 must be bidding for construction project
In accordance with the provisions of "Bidding Law" and the State Planning Commission "construction projects" provisions for the scope and scale of the standard, (a) large projects of infrastructure, public utilities and other relations between the social and public interests, public safety; (two) use all or part of the state-owned capital investment or financing projects; (three) use loans, aid funds from international organizations or foreign government projects. The project, including the project survey, design, construction, supervision and construction of major equipment, materials procurement, meet one of the following standards, must be subject to tender:
The construction of individual contracts estimated at more than 2000000 yuan;
The important equipment, materials procurement of goods, a single contract price estimate in more than 1000000 yuan;
The survey, design, supervision service procurement, single contract in the estimated price of more than 500000 yuan;
The single contract price lower than the first estimate of 1, 2, 3, paragraph of the standard, but the total investment of the project in more than 30000000 yuan.
(1) according to the "projects for the scope and scale of standards" (the State Planning Commission Order No. third) regulations, range between social and public interests, public security infrastructure projects including:
The coal, oil, natural gas, electric power, energy and other new energy projects;
Transportation projects of railway, highway, water transport, pipeline, aviation and other transportation industry etc.;
The postal, telecommunication hub, communication, information and network communication program;
The flood control, irrigation, drainage, lead (for) water, treatment of water and soil conservation, beaches, water conservancy and other water conservancy project;
The roads, bridges, subway and light rail, sewage treatment, garbage disposal, underground pipeline, public parking lots and other city facilities project;
The ecological environment protection project;
And other infrastructure projects.
(2) the scope of public utilities involving social public interest, public safety include:
The water supply, power supply, gas supply, heating and other municipal engineering project;
The science and technology, education, culture and other projects;
The sports, tourism and other projects;
The health, social welfare projects;
The commodity housing, including affordable housing;
The other projects of public utilities.
(3) the scope of the use of state capital investment projects include:
The use of various finance the budget capital projects;
The use of the fund government special construction financial management project;
The use of state-owned enterprises and institutions, its own funds, and the state-owned assets investors have control over the actual project.
(4) the scope of state financing of the project include:
The use of state funds raised through issuing bonds project;
The use of foreign borrowing money or guarantee of the project;
The use of national policy loan project;
The state authorized investment and financing projects;
The national franchise financing project.
(5) the scope of the use of international organizations or foreign government funded projects include:
The use of capital loan from the world bank, Asian Development Bank and other international organizations in the project;
The use of loans to foreign governments and their agencies of the project;
The use of international organizations or foreign government aid project.
2.2.3 may not be bidding for construction project
A lawyer should note that according to the State Planning Commission "projects for the scope and scale of standards", "construction project bidding" and "housing construction and municipal infrastructure construction bidding management measures" provisions, any of the following circumstances, may not be the construction bidding:
(a) involving national security, state secrets or emergency rescue and disaster relief and not suitable for bidding;
(two) the use of relief fund versed need to use migrant workers;
(three) the main technology adopted in the construction of particular patent or proprietary technology;
(four) the construction enterprise from the project for, and the construction enterprise qualification grade meets the project requirements;
(five) in the construction of small attached project additional or main body project of adding stories, the original bid winner still have the contracting capacity; and the contractor has not changed;
(six) the unit construction recovery is stopped or delayed, and the contractor has not changed;
(seven) survey and design of construction projects, the particular patent or proprietary technology, or its architectural art form with special requirements, approval of the Department in charge of the project;
(eight) other circumstances stipulated by the laws, administrative rules and regulations.
2.2.4 project bidding conditions
A lawyer should pay attention to project bidding shall meet the following conditions:
(a) the tender has been established according to law;
(two) in accordance with the relevant provisions of the state needs to perform the project approval procedures, approval procedures have been;
(three) the project funds or funding sources have been implemented;
(four) the construction tender, should meet the needs of the design documents and other technical data;
(five) other conditions prescribed in laws, regulations, rules and regulations.
2.2.5 bidding and tendering entrusted by
A lawyer should note the bid inviting party which has the capability, can carry out the bid invitation matters itself. Any unit and individual shall not force the agency to handle the solicitation of tenders. A project subject to tender, tender themselves to tender, shall be filed with the relevant administrative supervision departments.
The tenderer does not have the tender documents and the bid evaluation ability of organization, construction project bidding should be entrusted with the corresponding qualification of a bid invitation agency tender.
2.2.6 tendering agency and its qualification
A procuratorial agency is a social intermediary organization which is established according to law, to engage in the bid invitation agency business and to provide related services. The qualification for a project bidding agency is divided into a, B two. A lawyer should pay attention to the project bidding agency could provinces, autonomous regions, municipalities directly under the central government shall undertake the project bidding agency business. But B project bidding agency can only bear the project investment (excluding land acquisition costs, large municipal facilities fees and compensation for demolition) project bidding agency business of 30000000 yuan of the following.
2.2.7 open bidding and inviting bidding
The tender mode can be divided into open bidding and inviting bidding. Open tender means that a tenderer invite unspecified legal persons or other organizations to bid tender notice of invitation to tender means that a tenderer; the form of invitation to bid, invites specified legal persons or other organizations to bid.
In engineering construction projects shall be tendered in accordance with the law, any of the following circumstances, may be approved to the invitation to tender, the national key construction project of invite public bidding, shall be approved by the development planning department under the State Council; local key construction project of invite public bidding, shall be approved by the provinces, autonomous regions, municipalities directly under the central government. Approval of the construction project and the need to invest all state-owned funds or state-owned investment funds accounted for the holding or leading position of invite public bidding, shall be subject to the approval of the project examination and approval department, but the project examination and approval department only for approval, approved by the relevant departments for administrative supervision.
(a) project technology complex or have special requirements, there are only a few potential bidders to choose;
(two) by natural geographical environment restriction;
(three) the design of national security, state secrets or emergency rescue and disaster relief, suitable for tender but not suitable for public bidding;
(four) compared with the cost and the project public bidding value, not worth it;
(five) open bidding should not be prescribed by laws, regulations.
A lawyer should pay attention to open tender to the tenderer, shall issue a tender announcement, shall be designated by the national newspapers, information networks or other media. Invited to tender by the tenderer, should have the capability to undertake the project, good credit standing of the specific legal persons or other organizations to more than three issued the invitation for bids.
A tender announcement or the bid invitation letter shall contain the name and address of the tenderer, nature of the project subject to tender, quantity, place and time of implementation and methods to acquire the tender documents.
The pre qualification tender bidding applicants for 2.2.8
Lawyers should be prompted to the tenderee may, according to the need for the project, pre qualification of applicants, can also be commissioned a project bidding agency qualification examination of applicants for. The pre qualification tender, the tender shall be in the tender notice or invitation to tender out the prequalification and the acquisition of the prequalification documents method.
The prequalification documents shall generally include the prequalification application form, the applicant, and the bidding applicants are required to provide proof of qualification, performance, technical equipment, financial situation and proposed a project manager and resumes the main technical personnel, performance materials.
The pre qualification, the tenderer shall tender the applicant to prequalified issue prequalification notice, time, place and method of informing the access to the tender documents, tender applicants and also to the pre qualification unqualified told the result of the prequalification.
Too much in the bidding prequalified applicants, tender person to be chosen by no less than 7 bidding applicants who pass the qualification pre examination.
2.2.9 bidding documents
(a) the construction tender tenderer shall, according to the characteristics and needs of the bidding project, own or entrust a bidding agent bidding documents. A lawyer should pay attention to the tender documents shall include the following contents:
The tender notes, including the general situation of the project, bidding, qualification conditions, project funding or implementation (including the bank issued proof of funds), section division, time requirements, quality standards, inspection and answering arrangement, preparation of tender documents, submit, modify, withdraw request, bidding, bidding requirements the period of validity, the time and place, the evaluation methods and standards etc.;
The technical requirements of the bidding project and design documents;
The bidding of engineering quantity list, shall provide the engineering quantity list;
Format and appendix to bid;
The main provisions of the contract to be signed;
The requirements of other materials submitted by the bidder.
Lawyers should pay attention to the law must be bidding for construction project, the tenderee shall be issued in the bid invitation documents, tender documents submitted to the location of the project construction of the local people's governments at or above the county level administrative departments for the record.
(two) the lawyers should pay attention to the design of bidding documents shall include the following contents:
The project name, address, occupation area, building area;
The approved project proposal and feasibility study report;
Economic and technical requirements of the project;
Determination of the city planning management planning and control conditions and land red line chart;
The reference to the engineering geology, hydrogeology, engineering survey, site investigation result report;
Based on the data of the water supply, power supply, gas supply, heat supply, environmental protection, municipal road etc.;
Time and place of the bidding documents, site reconnaissance of the Q & a;
The preparation of tender documents and bid assessment principles;
The tender documents to the deadline;
⑩ the version of the model contract or to the main provisions of the contract;
Do not bid compensation scheme.
2.2.10 bidding document and the time limit for submission of bid documents
Lawyers should pay attention to the tenderee tender documents have been issued to make necessary clarifications or modifications shall be in the tender documents, the deadline for submission of bid documents at least 15 days prior notice, all recipients of the tender documents in written form, and at the same time the location of the project at or above the county level for the record the construction administrative departments of the local people's government. To clarify or modify the contents of the tender documents for the part.
The tenderer shall set a reasonable period of time for the bidders the tender documents required. According to the tender project, the tender documents to the issue date of the deadline for submission of bid documents date, a minimum of not less than 20 days.
The third section bidding
2.3.1 bidder qualification
A lawyer should pay attention to the construction of a bidder shall have the corresponding qualifications of construction enterprises, and to meet the requirements in the bidding documents, technical ability of project performance, project manager qualifications, financial condition.
The bidder shall have design engineering design and adapt to the project subject to tender qualification. Offshore design units to participate in domestic architectural engineering design bidding, approval shall be approved by provincial, autonomous region, municipality directly under the Central People's government administrative departments of construction.
2.3.2 the bidding documents
Lawyers should prompt a tenderer shall tender in accordance with the requirements of the tender documents documents, submitted to the substantive requirements and conditions of the tender documents in response. The bidding documents allow bidders to provide alternative bid, bidders can submit alternative bid documents according to the requirements, and make the corresponding price as alternative standard. A lawyer should pay attention to the construction of the bid documents shall include the following contents:
(1) the letter of tender;
(2) the construction organization design and construction scheme;
(3) the bidding;
(4) the requirements of the tender documents to provide other materials.
Which should include your resume, performance and intended to be the persons in charge of the project and major technical personnel for the completion of the project's mechanical equipment.
The bidder shall be the deadline for the submission of bid documents specified in the bid invitation documents, tender documents will be sealed to the place. Tender documents were received after the tender, should be issued indicating the signer and the time of receipt of documents to bidders, and proper preservation of the tender document. Before the bid opening, any unit and individual shall open the bidding documents.
The deadline for the submission of bid documents specified in the bid invitation documents, can add, modify or withdraw his bid documents submitted. Add, modify the content of the part of the bidding documents.
2.3.3 bid guarantee
Lawyers should pay attention to the tender in the tender documents require bidders to submit the tender guarantee. The tender security can use tender bonds or bonds manner. Bid bond can use cheques, bank drafts, generally not more than 2% of the total bid price, shall not exceed a maximum of 800000 yuan.
The bidder shall be in accordance with the requirements of the bidding document method and amount, tender bonds or bonds with the tender documents submitted tender.
2.3.4 joint bidding
Lawyers should pay attention to two or more legal persons or other organizations may form a consortium, to a bidder to bid jointly. Each party to the consortium shall have the corresponding capability to undertake the project subject to tender and the corresponding survey, design, construction, supervision qualification. The body is composed of units of the same profession, determine the quality level in accordance with the qualification grade of the lower unit.
Each party to the consortium shall sign the joint bidding agreement expressly agreed by the parties, the tasks and responsibilities of each party, and the joint tendering agreement together with the bid submitted by the tenderer. Consortium wins the bid, each party to the consortium shall jointly sign a contract with the bid inviter, jointly and severally liable to the tenderer for the winning project.
2.3.5 bidder prohibited behavior
A bidder may not collude with the bid price, not crowding out other bidders fair competition, damage the tenderer or other bidders of the legitimate rights and interests.
A bidder may not collude with the tenderee, damage the interests of the state, social and public interests or the legitimate rights and interests of others.
Prohibit bidders to offer bribes to the tenderer or members of the bid assessment committee means for successful.
The bidder shall not be lower than the cost price, shall not bid in the name of another person or by other means for the resort to deceit.
The fourth section the bid opening, evaluation and acceptance
2.4.1 bid opening time and place
A lawyer should pay attention to the review, the bids shall be opened at the same time of the deadline for submission of bid documents set in the tender documents, bid opening place shall be the place predetermined in the tender documents. Bid opening shall be carried out in accordance with the following provisions:
Sealing the bidders or their elected representatives of the check of the bidding documents, notarization institution entrusted by the tenderee may also check and notarization. After confirm without any error, by the staff publicly opened, other main content is read out the names of the bidders, bid price and bid documents.
Tender in the tender documents for submission of bid documents all bid documents received before the cut-off time, shall be opened, read out in public when opening bids.
The process of bid opening shall be recorded and archived for future reference.
Determination of 2.4.2 invalid bidding documents
Lawyers should pay attention to, at the opening of tenders, the tender documents under any of the following circumstances, shall be regarded as invalid bid documents, shall not be allowed to enter the bidding:
(a) late delivery or non delivery of the specified location;
(two) according to the requirements of the tender documents not sealed.
The bidding documents in any of the following circumstances, handled by the bid evaluation committee according to the tender after the first:
(a) no unit seal has no legal representative or authorized agent or stamped signature;
(two) not according to the prescribed format, incomplete or illegible, cannot identify the key;
(three) the bidders submit a two or more different contents of the bidding documents, or in a bid to have two or more of the same project for bidding quotation newspaper, and is not a valid statement which, in accordance with the tender documents submitted except alternative bid scheme; (four) the name or organization structure and qualification is not consistent; (five) not according to the requirements of the tender documents to submit the tender deposit;
(six) joint bidding is not attached to the Commonwealth parties jointly bidding protocol.
2.4.3 evaluation committee
A bid evaluation committee organized according to law shall be responsible for. Lawyers should pay attention to the law must be bidding for construction project, the bid evaluation committee composed of experts representing the tenderer and the relevant technical, economic and other aspects of the composition, the number of members of 5 or more singular, outside the tender, tender agent technology, economic aspects of experts shall not be less than 2/3 of the total number of members. Members of the bid evaluation committee of experts to determine the list of experts, experts shall be determined by tender from the construction administrative departments and other relevant departments of the roster of experts or project bidding agency related professional in. Identify expert members shall take random way.
An interested person shall enter the relevant engineering bid evaluation committee and the. The members of the bid evaluation committee shall be kept confidential list until the winning bidder has been determined.
Matters needing attention in the bid evaluation committee of lawyers work: lawyers should pay attention to the legitimacy of bidding document, examination time and place for the bid opening of effectiveness, effective whether the bidding documents to the bid invitation documents the substantial contents of the response, according to the particularity of the project drafting targeted subject outline, review the legality of bid evaluation method.
2.4.4 subject
Attention should be paid to lawyers, the bid evaluation committee may in writing require bidders have obvious writing and errors in the calculation of the content to make necessary clarification or explanation of the bidding documents are not clear in meaning, for similar problem formulation inconsistent or. The bidder shall be made in written form for clarification or explanation, the clarification or explanation of the substantive content shall not exceed the scope of the bidding documents or change the bidding documents.
Any of the following circumstances, the bid evaluation committee may require bidders to provide a written explanation and provide related materials:
(1) has a base bid price, bidding price is lower than the price of the reasonable range;
(2) without base bid price, bidding price is lower than the other bids, there may be less than the cost of business.
The evaluation committee to prove, that the bidder's price is lower than the cost of the enterprise, not the winning bidder recommended for the successful candidates or.
Lawyers for the drafting of tender people should pay attention to standard outline for: not to the bidder suggestive or induced problems, or to clear in the bidding documents omissions and errors. Only through inquiring bid uncertain variables and the corresponding responsibility. The issues need to be clarified, the bidding process is still uncertain, after the successful signing of contracts often will this problem, such as general management fees (including management and fee basis), warranty gold in different years and corresponding warranty period setting, supervision units acceptance and work measures and if successful, will choose what contract text, how to apply.
2.4.5 bidding and bid evaluation methods
The bid evaluation committee shall, in accordance with the bid assessment standards and methods set in the tender documents, evaluation and comparison of bids, and the evaluation results to confirm the signing; has a base bid price, reference shall be made thereto.
The evaluation can be used in comprehensive evaluation method, the lowest bid price method or the law permitting other evaluation methods.
The comprehensive evaluation method of the bidding documents, shall put forward the engineering quality, construction period, the tender price, construction organization design and construction scheme, the bidders and project manager performance, can satisfy the comparative review and requirements specified in the bid invitation documents and evaluation standard. To score were evaluated for various competitions, awards or extra score.
The evaluated lowest bid price method, should be in the bidding documents can satisfy the substantial requirements of the bid documents to bidders, review the bid price is the lowest bidder, the bidding price is lower than the cost of the enterprise except.
Evaluating the bid after the bid evaluation committee, shall submit a written bid evaluation report to the bid inviter, clarify the bid evaluation committee of the bidding documents and views, and in accordance with the bid evaluation methods prescribed in the bid invitation documents, recommended no more than 3 sort qualified candidates for winning the bid. Determined by the tenderee according to the written report on bid evaluation committee recommended candidates for winning the bid. Using State-owned funds or state financing of the project, the tenderee shall determine the winning bidder according to the order of the candidates. When determining the winning candidate winning bidders to bid or prevented by force majeure proposed not to perform the contract, the tenderee can sequentially determine other successful candidate for the winning bidder. The tenderer may also authorize the bid evaluation committee to directly determine the winning bidder.
2.4.6 determine the winning bidder time and conditions
The tenderer shall within 30 days prior to the deadline of the valid period of determining the winning bidder. Successful bidder shall meet one of the following conditions: (a) to maximally satisfy the various comprehensive evaluation standards prescribed in the bid invitation documents; (two) to meet the substantive requirements of the bid invitation documents, and accredited lowest tender price; but except the tender price below cost.
Winning bidder is determined, the tenderer shall issue a bid winning notice, and at the same time the inform all the unsuccessful bidders of the result.
The bid winning notice has the force of law to the tenderer and the winning bidder.
2.4.7 determine the winning bidder to the construction sector report
Lawyers should pay attention to, must be subject to tender according to law, the tenderer shall determine within 15 days of the successful bidder, submit a written report to the engineering construction bidding the location of the local peoples governments above the county level administrative departments of construction. A written report shall include the following contents:
(a) the basic situation of public bidding, bidding, construction bidding, the range of qualification, the evaluation process and determine the winning bidder way and reason.
(2) the relevant documents, including the tender notice or invitation to tender, bid form, pre qualification documents, tender documents, the bid evaluation committee (has a base bid price, bid evaluation report shall be attached with the base price), bidding documents. Commissioned a project bidding agency shall also be attached, bidding for project construction agent contract.
The 2.4.8 contract signed
The tenderer and the winning bidder shall, within 30 days from the date of the notice, in accordance with the signing of a written contract tender documents and the bid documents; the tenderer and the winning bidder may not conclude any other agreement against the substantial contents of the contract. Conclude a contract in writing within 7 days after, the winning bidder shall be the administrative department in charge of construction contract to send at or above the county level of the project location for the record.
Successful people don't make contract with the bid inviter, the bid bond shall not be refunded and cancel the subject qualification, loss caused to the tenderer exceeds bid security in the amount, it shall compensate the part in excess; not to submit the tender deposit, loss of the tenderer shall bear compensation responsibility.
The tenderer and the winning bidder does not sign the contract without any justifiable reason, causes losses to the contractor, the tenderer shall pay compensation.
2.4.9 invalid bidding situation
Attention should be paid to lawyers, invalid bid occurred in any of the following six kinds of circumstances:
(a) in violation of "bidding agency of tender and Bidding Law" provisions of article fiftieth, divulges confidential and bidding activities and related information, or with the tenderer and bidder collusion, damage the interests of the state, social and public interests or the legitimate rights and interests of others, affect the bidding result;
(two) according to the "Bidding Law" the fifty-second regulation, a project subject to tender bidding to others revealed the names of potential bidders, the tender documents already obtain the number or other conditions may affect the fair competition related to tender, or leaking Biaodi, affect the results;
(three) according to the "Regulations" the bidding law of fifty-third, the collusion bidding or collude with the tenderee, bidders to offer bribes to the tenderer or members of the bid assessment committee means for successful;
(four) according to the "Bidding Law" provisions of article fifty-fourth, the bidders bid in the name of another person or by other means, resort to deceit win the bid;
(five) a project subject to tender, tender person in violation of "Bidding Law" the fifty-fifth regulation, negotiate with the bidders on price, bidding scheme such substantial contents as the bid winning results, influence;
(six) according to the "Bidding Law" provisions of article fifty-seventh, other than the recommended according to law by the bid evaluation committee for the candidate of the winning bidder is determined, a project must be subject to tender according to law by the bid assessment committee after the veto to determine the winning bidder to bid at all.
A project subject to tender in violation of the law, the invalid, should be in accordance with the "provisions of the conditions of tender and Bidding Law" from among other bidders to determine the winning bidder or in accordance with the "Bidding Law" re tender.
2.4.10 four bidding shall be ordered to make corrections
Lawyers should pay attention to the following four kinds of circumstances, the administrative organ shall order it to make corrections, can be "":
(a) illegal bidding or circumvent bidding. The tenderer in violation of the provisions of laws, not bidding on projects that must tender for a project subject to tender, will break up the whole into parts or by any other means to circumvent bidding, "Bidding Law" stipulates that the forty-ninth ", can be corrected within a time limit".
(two) illegal limit bid. The tenderer to unreasonable conditions restrict or exclude potential bidders, discriminate against potential bidder, compels bidders to form a consortium to bid jointly, or restrict competition among the bidders, "Bidding Law" provisions of article fifty-first, "shall be ordered to make corrections".
(three) change the substantive content of the bidding. The tenderer and the winning bidder does not enter into a contract in accordance with the tender documents and the bid documents of the tender, the successful bidder, or a departure from the bidding documents the substantial contents of the contract, "the bidding law" provisions of article fifty-ninth, "shall be ordered to make corrections".
(four) the illegal interference bidding activities. Any unit, in violation of the law, the legal limit or exclude the region, outside the system or other organizations to participate in the bidding, designate a bid invitation agency for the bid, forced the tenderee entrust a bidding agency to carry out the tender, or otherwise interfere in tendering and bidding activities, "Bidding Law" the sixty-second regulation, can "shall be ordered to make corrections".
The 2.4.11 shall re tender
Lawyers should pay attention to, the following two situations, shall re tender:
(a) the less than a quorum. "Bidding Law" twenty-eighth stipulates: "the bidders shall submit the deadline for the tender documents specified in the bid invitation documents, the bid documents to the place of. The tenderer shall sign after receiving the bidding documents, preservation, may not open. If there are fewer than three bidders, the bid inviter shall invite bids anew according to this law."
(two) all bids are rejected. "Bidding Law" forty-second stipulates: "the bid assessment committee after the assessment, that none of the bids to meet the requirements of the tender documents, it may reject all bids. All the bids for a project subject to tender according to law are rejected, the tenderer shall re tender according to the law."
Business content 2.4.12 lawyers in the construction project bidding process can bear
(a) as the tendering agent, lawyers can be engaged in the work of the two:
The guarantee legality bidders work. The major review has direction tender bids submitted and other documents, data, and ensure the legitimacy of these documents, information and standardization, in order to avoid the content or form of illegal and lead to the rejection of the bids generated.
The supervision of the bidding party work, mainly:
A. review the tender documents. Content review is fair, reasonable, especially the special requirements of the bid invitation party proposed; text to examine whether the clear meaning, there is no ambiguity; the form of review their compliance with the statutory. Finally, to assist the bidder make bid -- whether a legally binding offer to the tenderee decision.
B. supervised the tenderer's tender, bid opening, bid evaluation, negotiation, bidding work is in accordance with the legal procedures and during development. If not, can proxy bidding tender side direction comments or objections, complaints or even to the higher competent administrative departments of the tender side.
After winning the bid for C., the two sides signed the project contract checks, and after disputes may arise in the party to solve the problem of agency.
(two) as the tendering agent, lawyers can be engaged in:
During the tender preparation, lawyers for bidding activities have statutory issue legal opinion book, avoid the invalid from the beginning to produce unbearable consequences; two to participate in the drafting and review the tender documents, including the "instructions to bidders," the terms of the contract, agreement, etc.
The bidding process, the lawyer to ensure the whole process was in accordance with the legal procedures and within the statutory time limit; the two should be based on the actual situation and the qualification examination of bidding document of the insured, issue legal opinion to the bid invitation party, for its decision reference, ensure that the final winner in the law a requirements, which have the legal capacity to contract in the engineering construction.
The award, the lawyer to draft and review the bidding between the two sides of the project contract, the two parties to deal with in the course of fulfilling the contract disputes and the tender side so the project with a third party disputes.
　　　　　　　　　　　　　　　　　
The third chapter of a construction project contract
The first section of the contract type

According to the provisions of China's "contract law" article 269th, a contract for construction project is a contractor performs project construction, and the developer pays the price, at the same time, the employer and the Contractor a reconnaissance, design, construction or engineering general contracting construction Hongcheng contract shall be made in written form. Supervision of construction project, the developer shall also with a project supervisor supervision contract in written form.
Survey and design contracts, 3.1.1 project
3.1.1.1 engineering contract
Construction engineering contract, refers to the engineering acceptance of the employer (the construction unit or other units concerned) commissioned, according to the requirements of the construction project, identification, analysis, evaluation of construction site of geological, geographical characteristics and geotechnical conditions, preparation of construction survey documents, the employer shall pay the price in the contract. The other relevant units usually refers to the agent or the project general contractor or the survey the general contractor.
3.1.1.2 engineering design contract
The project design contract refers to the design of people to accept the employer (the construction unit or other units concerned) commissioned, according to the approved by the relevant government departments of the project planning and design requirements of the construction project, the construction technology, the economy, resources, environment and other conditions to carry out comprehensive analysis, demonstration, the preparation of project design documents the employer pays the price, the contract. The other relevant units usually refers to the agent or the contract of construction or engineering general contractor or design department.
3.1.1.3 lawyers can be based on client requirements, combined with the specific circumstances of the project, the reference state of the Ministry of construction, the State Administration of industry and Commerce in 2000 jointly issued the "construction engineering contracts (model version)" and "construction project design contract (a)" (GF20000209) (design by contract, civil construction engineering) "construction project design contract (two)" (GF 2000 0210) (design by contract demonstration text of specialized construction engineering); according to China's "contract law", "construction law", "construction quality management regulations", "survey and design bidding procedures" and other relevant laws and regulations drafting, review project survey, design contract.
3.1.1.4 lawyer should remind the principal note:
(a) the principal survey in engineering design, contracts for survey, design the work requirements shall be in accordance with the approved by the relevant government departments of the project planning and design requirements of the construction project. The surveyor, designer should not be approved by the relevant government departments in the non-compliance of the project planning and design requirements of the construction project cases accept investigation, design principal.
(two) the strict implementation of survey and design review, construction of system files, without examination, shall not be used.
(three) investigation, design units shall contract for the surveying, design task of construction for its qualification grade certificate scope.
(four) the state allows the foreign design companies to obtain the corresponding qualifications to cross-border delivery way to provide preliminary design construction projects within the territory of China (basic design), construction drawing design (detailed design) documents the construction engineering of china. China Construction Engineering design but the employer must choose at least one hold issued by the administrative department of construction design qualification for Chinese foreign cooperative design.
(five) in engineering investigations, design of the contract, the employer shall not:
Direct the nominated sub project survey, design.
The items of investigation should be made by a person, who completed the design engineering investigations, design into several parts and contract them out to other units or individuals.
Survey and design, the employer shall take tender of construction project contracting units or individuals do not bid or tender invalid.
(six) in engineering investigations, design contract, engineering survey, design shall not:
The designated construction materials, equipment, components and fittings manufacturers, suppliers.
The engineering survey, design contract may not be all subcontracted to other units or individuals, or the engineering investigation, design engineering content into several parts in the name of the subcontracted to other units or individuals.
In engineering survey, design contract has not been agreed upon and is not approved by the construction unit under the condition of engineering investigation, exploration, design content and design contracts subcontract to other units or individuals.
The engineering survey, design may not be subcontracted to other units or individuals.
(seven) engineering survey, design subcontract should follow certain principles:
In addition, the engineering survey design contract has been agreed, the professional engineering survey, design subcontract must be approved by the employer's approval:
The sub professional engineering survey, design must have the corresponding professional investigation, design qualification, and the business in its scope of qualifications.
Professional subcontracting engineering investigation, design must be completed the contract engineering survey, design, or all or part of sub sub sub;
The sub professional engineering survey, design is the work results and engineering investigation, design to the employer shall bear joint and several liability.
Contract of construction project 3.1.2
3.1.2.1 engineering and construction contract refers to the construction as a contractor engaged in civil engineering, construction engineering, pipeline and equipment installation and decoration engineering construction, expansion, renovation and demolition of construction work, the employer (the construction unit or other relevant units) to pay the price of the contract. The other relevant units usually refers to the general contractor or construction or engineering general contractor of construction agent.
3.1.1.2 engineering and construction contract includes the contract subcontracting construction general contracting and construction. Subcontract including professional construction subcontracting and labor subcontracting.
(a) the total construction contract refers to the employer all construction completed by the construction of contract for construction project. The construction is also called contractor or construction general contractor.
(two) the professional construction sub contract refers to, according to the construction general contracting contract or in obtaining the approval, construction general contractor will the construction general contracting project in addition to the main part of the project other than the part of the project out to other people with the relevant qualification construction completed and signed the contract. The general construction contractor called professional construction the employer, the other construction is also called professional construction subcontractor.
(three) the subcontractor refers to construction (including construction general contractor or professional construction subcontractor labor contract) as the project of the labor service contracts to the subcontractor to complete and sign contract.
3.1.2.3 law can refer to the national Ministry of construction, the State Administration of industry and Commerce in 1999 jointly issued the "construction contract (model version)" (GF-1999-0201), or use the international general contract text according to the requirement of client (such as F
The IDIC conditions of contract, combined with the actual situation of drafting), specific project review engineering construction contract.
3.1.2.4 lawyer should remind the principal note:
(a) in the general contractor in the contract, the employer shall not:
A, directly designated professional construction contractor or subcontractor people.
The specified B, building materials, equipment, components and fittings manufacturers, suppliers.
C, a construction project which should be completed by one contractor parcel out to several contractors.
D, should take tender contract contract for a project is not the winning bidder or bidders bid is invalid.
(two) in the total construction contract, construction general contractor shall not:
A, the general contract project all subcontracted to other contractors, or project will be dismembered into several parts in the name of sub contract to other contractors;
B, in addition to the subcontractor, the contract has not been agreed upon and without the employer's consent to the general contracting in engineering specialized project subcontracted to other construction;
C, the main structure of the construction project to others to complete.
(three) Engineering subcontractors should follow certain principles:
A, in addition to the general construction contract has been agreed, a professional construction subcontractor must be approved by the employer's approval;
B, a professional construction subcontractor must have professional contracting the qualifications of construction contract business, and in its scope of qualifications; labor subcontractor must have the corresponding labor contractor qualification, and the business scope of its qualification license within the.
C, a professional construction subcontractor must have completed the contract works independently, not all or part of sub sub sub;
D, a professional construction subcontractor the finished work and construction general contractor, common to the general construction contract to the employer shall bear joint and several liability.
3.1.3 Engineering (reconnaissance, design, construction) contract
3.1.3.1 engineering general contract refers to is engaged in the project general contractor accept the employer (the construction unit or other units concerned) commissioned, completed in accordance with the investigation, design, procurement, construction, commissioning of the project contract (acceptance), implementing the whole process or some stage of the contract, the employer to pay the price of the contract. The other relevant units usually refers to the agent.
3.1.3.2 the employer will be building the engineering investigation, design, construction, equipment procurement to a general contractor, can also be construction project survey, design, construction, procurement of one or more tasks to an engineering general contractor.
3.1.3.3 contractor are mainly design procurement construction (EPC) general contracting, turnkey, design a total construction contract, design - procurement contract, procurement and construction general contracting, construction general contracting and other forms of survey and design.
3.1.3.4 lawyers should remind clients attention:
(a) the project conditions, investment and financing ability of the project general contractor can according to the employer's requirements, the transfer in accordance with the construction of - (BT), Build Operate Transfer (BOT), construction has the management (BOO), construction has the operate transfer (BOT), construction with the Management (BOT), building management (BOOT) has organized the implementation.
(two) engineering investigation, design, construction people can form a joint body engineering general contracting of Engineering projects.
(three) the employer shall members require the project general contractor consortium entered into joint venture agreements. Should make clear its own division members in the project general contracting activities in the consortium, and the engineering general contract conclusion and performance of the contract shall bear joint and several liability to the employer.
(four) the employer shall also comply with this section is the first, two of the relevant provisions of the contract.
(five) single engineering general contractor shall also comply with this festival is the first, two relevant engineering investigation, design, construction of people.
(six) the members of the project general contractor consortium should be in accordance with the provisions of the joint agreement of division of labor in nature to comply with this festival first, two relevant engineering investigation, design, construction of the people who are.
3.1.4 engineering supervision contract
3.1.4.1 engineering supervision contract refers to the supervision of people to accept the employer (the construction unit or other relevant units) and represents the principal of project quality, cost, schedule, schedule, payment and other professional supervision, control and coordination of the relationship between the relevant parties in construction site, the employer payment of the contract. The other relevant units usually refers to the general contractor or project construction agent.
3.1.4.2 lawyers can be combined with the specific circumstances of the client requirements and project, construction supervision contract with reference to the Ministry of construction in 2000, the State Administration for Industry and Commerce promulgated the "(model version)" (GF-2000-0202); in accordance with China's "contract law", "construction law", "construction quality management regulations", "construction project safety production management regulations" and other relevant laws and regulations drafting, examination of engineering supervision contract.
3.1.4.3 lawyer should remind the principal note:
(a) the supervisor should undertake construction supervision task in its qualification grade within the scope of license.
(two) countries to allow foreign institutions to comply with the provisions of the conditions to set up wholly-owned or joint venture enterprise within the territory of China, and to provide the construction supervision services in the obtained corresponding quality in china.
(three) in the engineering supervision contract, the employer shall not:
The delegate should take tender commissioned the construction engineering supervision to the unsuccessful bidders or invalid bidding.
(four) in the engineering supervision contract, the supervisor shall not:
The specified A, building materials, equipment, components and fittings manufacturers, suppliers.
B, the engineering supervision contract all subcontracted to other people, or the project supervision work content dismembered into several parts on behalf of the sub entrusted to other people
C, the engineering supervision contract has not been agreed upon and without the employer's consent to the supervision work content of engineering supervision contract subcontracting to others.
D, the supervisor shall not and supervision construction material suppliers, equipment and other is the supervisor has any interest relationship.

The second section contract subject qualification

The main works construction contracts the adequacy of each are not identical, review points lawyers should pay attention to the following some similarities in the main body of the project construction contract review the adequacy of:
(a) the main contract without the qualifications of a legal person or other organization established according to law, belongs to the independent civil subject.
(two) have the right to sign the construction contract or obtain legal authorization.
(three) whether to meet certain qualification requirements. Qualification, is the basis of registered capital, enterprise net assets, professional and technical personnel and has completed the development or construction engineering factor assessment of enterprise. Construction enterprises shall hold legally obtained certificates of qualifications, and undertake projects in its qualification grade certificate within the scope of business.
(four) a lawyer shall remind the construction enterprises in the following is illegal:
1, beyond the range of qualifications to undertake the project business;
2, no qualification to borrow name qualification enterprises undertake engineering business; or any other entity or individual to undertake engineering business in the name of the enterprise.
The following is the specific analysis of the construction of the main contract works for all kinds of the suitability of the common points, the (referred to as "the") in the following types of contract is no longer the.
3.2.1 construction unit as the adequacy of the employer
As the employer of the construction unit has two kinds of state: general construction units and real estate development enterprises.
(a) the construction unit lawyers in the review of general as the main body of the employer shall pay attention to proper time:
A has no access to land use rights;
B has no planning permission;
C has no funds or funding sources corresponding;
D on the project subject to tender according to law must be whether bidding and to determine the effective.
(two) counsel in the review of real estate development enterprises as the main body of the employer's qualification also should review whether have the corresponding qualifications and whether the real estate development in the qualification range.
3.2.2 construction unit as qualified contractors
The agent is generally refers to the construction unit to choose social professional social management unit, referred to as the construction unit, investment management and construction organization responsible for the implementation of the project, strict control of the project investment, quality and time limit for a project, after completion of the project is delivered to the use of units of the system.
At present, China's laws and regulations on the provisions on behalf of the blank, lawyers in the review of construction unit as the main contractor qualification primarily its construction units without authorization.
3.2.3 construction general contractor as qualified sub contract the employer
(a) the construction general contractor as the main body of the non engineering professional sub contract the employer: unless otherwise agreed in the contract, should be agreed by construction units.
(two) general construction contractor as a labor contract the employer: no contract or the construction unit agreed.
The main 3.2.4 surveyor qualification
The lawyer review investigation of human subject qualification is the qualification review:
(a) classification of construction engineering quality: Engineering Survey and comprehensive quality, engineering survey, engineering survey services qualification professional qualifications.
(two) the construction survey qualification grade: Engineering Survey and comprehensive qualification only grade A; engineering professional set up categories and levels according to the nature of the project and technical features; engineering services qualification regardless of level.
(three) the construction survey of business scope is different for different enterprises qualification: Engineering Survey and comprehensive quality, to undertake engineering business scope is not limited; make engineering professional qualification of enterprises, can take the same level of the corresponding professional engineering business; make engineering services qualification enterprises, can undertake services work management, engineering drilling, drilling engineering investigation of geotechnical engineering.
The main 3.2.5 design qualification
The main law review the adequacy of design should be different requirements for different design of domestic and foreign units:
(a) the domestic design units
Classification of A, construction engineering design data: comprehensive quality engineering design, engineering design, engineering design special qualification certifications.
B, construction project design qualification grade: a grade a comprehensive quality engineering design; engineering design industry qualification and engineering design special qualification according to engineering and technical characteristics of a class nature and level.
C, construction engineering design scope of business units is different for different: qualification obtained comprehensive quality engineering design enterprises, which undertake engineering design business scope is not limited; engineering design industry qualified enterprises, engineering design business can take the same level of the corresponding industry; obtain special quality engineering design enterprises, can undertake the same level of the corresponding special engineering operations.
(two) foreign enterprises engaged in engineering design activities within the territory of China
Foreign enterprise refers to registration registered outside the people's Republic of China, engaged in construction engineering design activities of enterprises. Foreign design enterprise in the territory of China, must choose at least one holds the corresponding design quality Chinese for Chinese foreign cooperative enterprises design, and to undertake the design of business within the scope of the choice of Chinese design enterprise quality permit.
Application of 3.2.6 workers (including professional subcontracting, labor subcontracting people) subject qualification
(a) construction (including professional subcontracting, labor subcontracting people) are grade and its corresponding to different quality standards.
(two) a lawyer review construction (including professional subcontracting, labor subcontracting people) subject qualification, should check whether the relevant standards audit construction qualified corresponding.
3.2.7 Engineering (reconnaissance, design, construction general contractor) subject qualification
Should pay attention to body lawyers to review the project general contractor qualification at:
(a) no special engineering general contracting qualification standards and grades.
(two) construction enterprises as long as the engineering survey, design or construction general contracting qualification can carry out project general contract project within the scope of its qualification grade certificate.
The main 3.2.8 supervisor's qualification
Should pay attention to body lawyers to review the adequacy of when the supervisor:
(a) engineering supervision enterprise level of qualification is divided into class A, B and c:
A, a project supervision enterprises can Project Supervision approved category one or two, three etc..
B, B engineering supervision enterprise can two or three Engineering Supervision approved categories in the project.
C, C engineering supervision enterprise can Project Supervision approved category three projects.
(two) the project supervising enterprise qualification according to the nature of the project and technical characteristics are divided into 14 categories of projects:
A, engineering supervision enterprises may apply for one or more engineering professional category.
Project B, the application of quality supervision enterprises, should choose a main items of qualification, the rest of the increase of investments.
Increasing the quality of level C, engineering supervision enterprise shall not be higher than the main items of qualification level.
(three) can be entrusted with the supervision units corresponding level of quality supervision, can also be entrusted with the corresponding qualification grade of engineering supervision and design units of the project no subordinate relationship or other relationship with the contractor of construction engineering supervision in the supervision of. Design units that meet the supervision conditions can make engineering supervision qualification in the name of the design unit application; can also set up the entity supervision company in the design units and project supervision qualification to apply for and obtain.
3.2.9 main body of the same party union of eligibility
The different requirements of subject law review one party to a contract for the united body of eligibility should distinguish consortia as the contractor and the employer:
(a) the main union as a contractor qualification
A, each party to the consortium qualification must be consistent with the requirements of the construction unit, the joint contracting and two or more units with different levels of qualification, lower level of qualification units should be in accordance with the business scope of the contracting project.
B, each party to the consortium shall jointly with owners signed a contract on the performance of project management, the project management contract shall bear joint and several liability.
(two) combination as the main contractor qualification
A, as the combination of the subject qualification according to the body in the project general contractor or construction general contractor status and different.
B, as the combination of contract shall be made by the parties to a consortium or authorized one signed.

Main contents of the third day contract
3.3.1 engineering contract
Contents of engineering contract mainly include: the submission of the relevant basic documents and investigation results on time, quality investigation and results requirements, investigation costs and other expenses, the rights and obligations of both parties, the liability for breach of contract, dispute resolution and other issues such as clause.
The lawyer draft or review engineering contract should pay attention to the following specific content has not been expressly agreed:
(a) the detailed content, the employer provides the basic document number and the time limit.
(two) the surveyor to submit detailed content, the survey results of quantity, quality and quality validation procedure.
(three) started and submit the investigation results of the investigation work time.
(four) the responsibility of the parties to the investigation of delay.
(five) investigation fees and other expenses amount and payment.
(six) and the responsibility of the parties to the employer provides the basis documentation flaws.
(seven) survey found in investigation object abnormalities or processing procedures and the responsibility of the parties to the other when exception.
(eight) and the responsibility of the parties to the survey results of defect and its consequences.
(nine) the continuation of services and fees reconnaissance achievement ownership of intellectual property rights, the prospecting bear (if required).
(ten) security and insurance (if required).
(eleven) the parties liability for breach of contract.
(twelve) the contract termination and revocation.
(thirteen) notification and delivery.
(fourteen) the applicable law and dispute resolution.
(fifteen) the parties request clear other matters agreed upon.
3.3.2 engineering design contract
The project design contract usually includes a word definition, the general situation of the project, the entrusted matters, the design results, design schedule, personnel arrangement, rights and obligations of the parties, professional liability and insurance, design fee and payment method, auxiliary services, value-added service and additional service, tax burden, design subcontract, design changes and compensation, the design results property rights and intellectual property rights, without force majeure, performance guarantee, breach of contract and compensation, contract change and transfer, the term of the contract, the termination of the contract, the applicable law and dispute resolution, notification and delivery, security, each requirement clearly other matters stipulated in the clause.
Design by contract law draft or review project in general should pay attention to the following specific content has not been expressly agreed:
(a) design is based on the views of government departments to modify and improve the design, and through the government departments approved duty.
(two) as the design includes construction design, design, design with construction site services work with service.
(three) by Chinese design and foreign design people (and said foreign design) design, engineering design contract shall be China design by design or foreign design parties and the employer signed. Foreign design and China design shall sign clearly the rights and obligations of the parties "Consortium Agreement" as the design of the annex to the contract. The design of the contract should specify design parties the employer shall bear joint and several liability.
(four) the design depth and scope of design.
(five) modify the design, design change definition, procedures and responsibilities.
(six) the design results of intellectual property ownership and responsibility. The design results focus on the ownership of intellectual property rights and responsibilities in the copyright and patent right.
(seven) the design of human occupation liability insurance clause. (design defects may result in huge losses, engineering construction and no people generally difficult to bear. Therefore agreed design policyholders occupation liability insurance liability risk dispersion design is necessary for the design of large-scale projects.)
(eight) performance guarantee clause (if required).
(ten), presided over, take responsible for design personnel list and personal information as the annex to the contract. (the level and quality of design results is the main designer).
Construction contract 3.3.3 Engineering (including construction general contracting contract, professional construction subcontracting and labor and labor contract)
3.3.3.1 engineering and construction contract
Engineering contract mainly include: the total construction contract terms are defined; construction general contracting scope: engineering construction general contracting mode; the representatives of the parties and the scope of authorization; all work and responsibilities; total construction contract duration, extended time limit for a project, shutdown and installation; engineering quality, safety and civilized construction; project cost, the price adjustment conditions, way final, procedures, duration, visa; engineering measurement; materials and equipment supply responsibility; condition engineering advances, progress payment, settlement and payment method, the time, the completion of the project, approval, for the record;; engineering transfer, withdrawal; procedure and processing of Engineering claim; liability for breach of contract; contracting and subcontracting; the general contractor management and coordination responsibility; rights and obligations of the subcontractors; return the project warranty, warranty gold; treatment project, only the risk of engineering guarantee, performance guarantee or the performance guarantee gold; dispute resolution and other issues such as clause.
The lawyer draft or review of general construction contract in general should pay attention to the following specific content has not been expressly agreed:
(a) the parties represent specific candidate authority, especially the authority engineer and the employer's representative;
(two) the nature of the contract price (temporary price or price, fixed unit or fixed price); adjust the conditions and methods of price; price adjustment basis; contract scope and risk coefficient of fixed price of the contract; fixed price is adjusted according to engineering quantity, measurement method and application unit;
(three) definition of the duration of the contract (contract within the time for completion, the total contracted project to the overall completion time); plan the commencement date, actual start date, scheduled completion day, the actual completion date, scheduled completion date and the actual completion date definition, confirmation procedures and time limit; the condition and the extended time limit for a project validation procedures; delay liability for breach of contract.
(four) the way of treatment and quality standard, quality dispute liability for breach of contract;
(five) engineering visa condition, form and procedure;
(six) processing procedure and responsibility of engineering change, design changes, the plan change, material substitution, the reasonable suggestions;
(seven) the completion of acceptance (pre acceptance, acceptance, the Property Management Company and other relevant third party approval) properties, procedures; completion data content, number of copies, delivery date and responsibility of breach of contract completion acceptance of responsibility;
(eight) general construction contractor management responsibilities, obligations, with the general management fees, fees, payment methods; chief contractor management fees, with fees, payment of joint and several liability chief contractor management;
(nine) based on completion of settlement, settlement (including construction general contractor unilateral settlement, the settlement, audit commissioned intermediary valuation) period, procedures and audit fees; settlement of dispute mediation mechanism and the mediation procedure; overdue audit liability for breach of contract;
(ten) Engineering transfer conditions, logo, program; overdue transfer the liability for breach of contract;
(eleven) the parties bear the insurance cost of insurance; mode; range, the insurance liability insurance contract in insurance, deductible amount, period of insurance; insurance claims responsibility and obligation; lack of insurance claims, insurance exclusions or deductible limit losses;
(twelve) the parties mutually for the performance guarantee content: the employer payment bond way, handling overdue payment; processing contractor performance guarantee way, construction quality of default; subcontract payment guarantee payment of wages, the form and style; performance guarantee or warranty conditions, gold return period;
(thirteen) the claim file content, form, procedure of claim;
(fourteen) Engineering Subcontract ban: package agreed range of professional construction subcontracting: illegal subcontracting, illegal confirmation and processing package; liability for breach of contract;
(fifteen) the contract termination, termination condition, recognition and processing procedures; liability for breach of contract;
(sixteen) the termination of the contract, rescission or in conformity with the agreed delivery time, withdrawal of the project confirmation procedure; liability for breach of contract;
(seventeen) the contract termination, termination: finished quantity, quality engineering review procedure; time limit and procedures have been the procurement of materials handling equipment, engineering data preparation and transfer; completed evaluation, technical interface engineering and unfinished projects and projects completed the unfinished project quality confirmation, processing program liability for breach of contract.
3.3.3.2 professional subcontract
The contents of the construction contract mainly include: sub word definition, the scope of the project, contract; the authorized representatives of the parties and the scope of authorization; subcontract project duration, project delay confirmation, extended time limit for a project conditions, procedures; sub project quality, safety and civilized construction; determine, subcontract project price adjustment, settlement way; the subcontractor and the general contractor, the employer, the relationship between the rights and obligations of the parties; subcontracting engineering data delivery time; subcontracting engineering materials and equipment supply responsibility; subcontracting engineering change; technical conditions, sub project cost method; sub contract responsibility; sub sub label claims; on completion of the subcontract works; the completion of acceptance, acceptance; with the general contract project; sub project transfer; return the sub project quality warranty warranty period, the warranty gold; contractor Cheng Danbao; subcontracting, subcontracting responsibility; dispute resolution and other issues such as clause.
Lawyer drafting or reviewing professional subcontract a muscle should pay attention to the following specific content has not been expressly agreed:
(a) definition, determine the project actual start and completion dates of the subcontract project; subcontract project postponed conditions (critical path) and procedures; subcontract project delay liability for breach of contract (including sub project delay but did not affect the assembly contractor Cheng Guanjian line construction period of liability for breach of contract; the subcontract project delay and lead to general contracting construction delay liability for breach of contract); time default maximum gold; duration of default and guarantee punishment; subcontract project schedule planning approval procedures;
(two) confirm the subcontract price visa premise -- the employer's premises; subcontract project visa -- will not affect the total contracting project, confirm the general contractor; progress of general contract project, and contractor.
(three) confirm the subcontract project price -- the employer approval premise;
(four) the Subcontract Works Payment Program -- the employer to pay the general contractor -- General Contractor subcontractor. Under special circumstances, the employer may pay directly for subcontracting, the premise is the employer without justifiable reasons, fails to pay the subcontract project price, resulting in general contract project schedule delay;
(five) chief contractor, subcontractor, the contractor instructions between the three for transfer procedures, the effectiveness of instruction subcontracting of man, when the solution is inconsistent with the employer's instructions appear chief contractor;
(six) the subcontractor for contract understanding, the subcontractor shall contract in chief contractor bear and subcontracting engineering related compulsory execution;
(seven) the subcontract project acceptance procedures, subcontract with general engineering acceptance of obligations, the sub project handover procedures, overdue transfer responsibility; divided the duty and responsibility to package engineering data transfer;
(eight) the subcontract works by way of security, processing and return guarantee or bond;
(nine) the subcontract works of warranty; warranty gold return;
(ten) the relation between the project construction contract effectiveness and professional construction sub contract; project construction contract is rescinded, approach subcontracting and program of professional construction;
(eleven) subcontractor approach subcontracting, subcontracting engineering and program;
(twelve) general construction contractor shall cooperate with the duty of management and content;
(thirteen) the guidelines section 3.3.3.1 "construction contract" not only applicable to other terms construction general contractor and the employer.
3.3.3.3 labor contract
Labor contract content mainly includes: subcontractors scope of work; working time; quality standard; calculation of labor compensation and payment; the supply of materials and equipment; the rights and obligations of both parties; the liability for breach of contract; labor work check and accept; dispute resolution and other issues such as clause.
The lawyer draft or review labor contract should pay attention to the following specific content has not been expressly agreed:
(a) and this guidance 3.3.3.2 "the specific content of Professional Construction Subcontract" basically the same;
(two) labor remuneration refers to the sum total labor labor cost, labor subcontracting corresponding management fees and taxes, should not plan to take a professional subcontracting content works.
(three) personnel accident insurance or comprehensive insurance.
(four) processing method in labor wages downtime, petition.
3.3.4 Engineering (reconnaissance, design, construction) contract
Engineering (reconnaissance, design, construction) contract mainly include: the scope of the contract, the employer of the construction of the project, construction period, the intent and requirements of intermediate construction project start and completion time, engineering quality (including survey quality, design quality, construction quality), project cost, delivery time, technical data the supply of materials and equipment, funding and settlement responsibilities, rights and obligations of both parties, the liability for breach of contract, acceptance, quality warranty and warranty period, dispute resolution and other issues such as clause.
The lawyer draft or review engineering (reconnaissance, design, construction) contract in general should pay attention to the following specific content has not been expressly agreed:
(a) the specific content and the guidelines for 3.3.3.1 "construction contract" in basically the same;
(two) the employer of the construction of the project intention and requirement;
(three) the project general contractor should bear in the survey, design, construction phase of the obligation, and in each stage of work, the employer approval validation procedures and work the next stage of development of the conditions.
(four) the employer agreed to the project general contractor work content package and responsibility to undertake.
3.3.5 engineering supervision are all the same
Engineering supervision contract mainly include: the scope and content of supervision, the supervisor authority, supervision period, the rights and obligations of both parties, supervision fees standard and method of payment, the liability for breach of contract, dispute settlement and other matters deemed necessary by the parties.
The lawyer draft or review engineering supervision contract should pay attention to the following specific content has not been expressly agreed:
(a) the supervisor to fulfill the contract, the chief supervision engineer for the staff and their working time requirements in the field.
(two) the supervisor authority: Supervisor's instruction such as relates to the extension of time, cost increase is the principal (i.e. engineering supervision contract the employer) prior consent.
(three) supervision period; relationship of supervision for the duration of the supervision reward.
(four) the calculation and payment of remuneration of supervision.
(five) the supervisor for technical information form the supervision of the submission obligation.
(six) the terms of business secret.
(seven) the responsibilities of the supervision of engineering quality problems.
(eight) the supervisor for breach of contract and / or tort liability, compensation scope and the compensation amount calculation method.
(nine) the extension project supervision cost adjustment calculation and adjustment procedure.

The rights of fourth parties to the contract obligations

3.4.1 the main contract rights and obligations
3.4.1.1 engineering investigation, design in the contract the employer
(a) technology to provide and data for the warranty liability. The survey, design cannot finish the job or increased workload due to the employer, according to the actual consumption of working time increase the fees.
(two) to provide the necessary assistance to the contractor.
(three) the survey fee, pay the design fee to the contractor.
(four) identify and safeguard investigation design results. In accordance with the contract and accord with enjoy contract objective survey and design results right.
Construction contract 3.4.1.2 Engineering (including construction general contracting contract, professional construction subcontracting and labor subcontracting contracts of the employer)
(a) to do the preparation work before construction, with conditions of construction site and various licenses and certificates, to provide temporary facilities and materials.
(two) to provide a variety of materials and equipment and the quality of material and equipment in accordance with about directional contractor.
(three) the timely disposal of the relevant problems in engineering, management engineering (or services) visa.
(four) the amount of completed project (or labor work) review, at any time on the project (or services) schedule, quality inspection, require the contractor to rework or repair.
(five) the organization project completion and acceptance, the proposed amendments.
(six) completed (finished or service workload) settlement.
(seven) accept the qualified project (or the service workload) and to pay the contract price (or compensation).
3.4.1.3 engineering supervision in the contract the employer (consignor)
(a) to pay about supervision remuneration
(two) coordinate external relationship and supervision service provided to facilitate the work.
(three) to provide engineering data.
(four) supervision work, accept the supervision results.
(five) to the supervisor the corresponding responsibilities and rights.
(six) the relevant work report to supervisor timely reply.
The main contract rights and obligations of 3.4.2 survey
(a) in accordance with the contract on schedule to complete the survey work, and submit the results agreed in the contract to the employer.
(two) the investigation results assume warranty responsibility, causing any loss due to the reasons, the Contractor shall continue to improve the survey, reduce or waive the survey fee and compensate for the losses.
(three) the investigation results have agreed in the contract and / or remuneration.
(four) to provide continuing service survey.
(five) to the employer fees as agreed in the contract and / or remuneration.
(six) assume conservative commercial secrets and technical secrets of the responsibility for the investigation results agreed in the contract the employer survey based data and submit.
The main contract rights and obligations of 3.4.3 design
(a) in accordance with the contract agreed to complete the design work, and submit design results agreed in the contract to the employer.
(two) assume warranty responsibility for the design results, causing any loss due to the reasons, the Contractor shall continue to improve the design, reduce or waive the fee and compensate for the losses.
(three) have agreed in the contract and / or the rights of the legal provisions of design results.
(four) provide on-site service, London during the design of the construction site services with service.
(five) to the employer fees as agreed in the contract and / or remuneration.
(six) assume conservative commercial secrets and technical secrets of the responsibility for the investigation results agreed in the contract the employer survey based data and submit.
3.4.4 construction (including construction general contractor, subcontractor, professional construction labor subcontracting) of the main contract rights and obligations
(a) good preparation before work started, start on time, ensure the project (or services) quality.
(two) accept the employer's instructions, accept the employer on the project (or services) check and supervise the progress and quality, according to the employer's opinion of rework, repair.
(three) provide material and equipment and the quality of material and equipment for material and equipment, to undertake the responsibility.
(four) according to the agreed quality and time limit for a project to complete the project (or services) and with the completion of acceptance.
(five) submit complete completion data and settlement report (or service workload completion report), with the completion of settlement.
(six) delivery of qualified engineering (or service workload) to collect project cost (or remuneration.
(seven) assume responsibility for the warranty within the warranty period, and the foundation and the main structure of the project to assume warranty responsibility in the life of the project design document requirements.
The main contract rights and obligations of 3.4.5 Supervisor
(a) supervise construction according to schedule, safety and quality standard of completion.
(two) the right to suggest technical problems during engineering construction, the selection of the construction team, engineering alteration and the decision in the authorized matters within the scope of.
(three) the quality, schedule and cost control in the construction process, to participate in the completion of acceptance, signed supervision opinion.
(four) the technical data to submit supervision period.
(five) justice supervision, maintenance of the employer (the principal) contract.
(six) conservative business secrets and technology, the construction of secret.
(seven) according to collect fees and other expenses of about supervision to the employer.

The fifth section and other matters relating to the conclusion of the contract

Adequacy of the parties to the contract agent 3.5.1
A proper contract agent should be made explicit authorization of the parties to the contract, the agent can only be in the contract within the scope authorized by the parties to the contract to perform the contract on behalf of rights and perform the contract obligations. Although the legal provisions of the contract litigant agent can is a legal person, natural person or any other organization, but the contract in the engineering practice of the parties usually is a natural person (if the employer or contractor project manager project manager, engineer).
3.5.2 forms of contract
China's "contract law" the tenth stipulation: "the parties entered into a contract, written form, oral or other forms. The provisions of the laws, administrative rules and regulations of the written form, shall be made in written form. In terms of form agreed by the parties, shall be made in written form." Article thirty-sixth stipulates: "the laws, administrative regulations or the parties have agreed to enter into a contract in written form, the parties do not use the written form, but one party has performed its main obligation, they accept, the thing with the establishment." Article 269th stipulates: "the contract of construction is the contractor performs project construction, and the developer pays the price of the contract. Construction contract includes engineering survey, design, construction contract." Rule 270th: "a contract for construction project shall be in written form." Rule 276th: "the implementation of the construction supervision, the developer shall conclude a contract for supervision and supervisor use written form. The contract letting party and the supervisor's rights and obligations and their legal liability in accordance with this law, shall entrust contract and provisions of other relevant laws and administrative regulations."
Therefore, in accordance with the "contract law" provisions, reconnaissance, design, construction, supervision of contracts shall be made in written form. But fails to conclude a written contract, if one party has performed its main obligation, they accept, it also established.
3.5.3 model contract and standard terms
The model contract is the national construction department or engineers association international or other industry widely affect the industry relevant international organizations in order to guide the parties enter into a contract for construction project, the contents of the contract and the standard reference text for. The parties may choose to use, also can choose not to use, and according to the actual situation further contract text. Current construction project of the Chinese Ministry of construction, the State Administration for Industry and commerce to recommend the use of model contracts are: 1 "construction engineering contract
(GF-2000-0203) (a) "[the geotechnical engineering investigation, hydrogeological investigation (including sinking) engineering surveying, engineering geophysical]," construction engineering contract (GF-2000-0204 (two)) "[geotechnical engineering design, management, monitoring]. 2, "construction project design contract (a" (GF-2000-0209) design contract of civil construction engineering, construction engineering design contract) "GF-2000-0210" (two), (design contract professional construction engineering). 3, "construction contract (GF-1999-0201)", "construction professional subcontract (GF-2003-0213)", "the construction labor subcontracting contract (GF-2003-0214)". 4, "construction supervision contract (model version)".
China's "contract law" thirty-ninth paragraph second: "terms of format is Wang are prepared in advance for repeated use, and not negotiated with the other party in the conclusion of the contract terms." Therefore, the format of the contract must be the other party in advance a method it out, and at the time of conclusion not and the contract relative party negotiated contract. While the model contract first, not by one of the parties to the contract model text, but the national Ministry of construction and the State Administration for Industry and Commerce in order to balance the rights and obligations of the parties was developed for selective use of parties, and terms and demonstrative text is not all worked out well, apart from the general terms and conditions, and special provisions of the agreement the content needs to contract the parties. Thus the model text does not comply with the "Regulations on the format of the terms of contract law", the terms of which cannot be identified as the terms of format.
However, the contract of construction of the party in order to pre prepared, and in the formation of contracts are not negotiated with the other party or refuse to negotiate with each other and, if specified in the bid invitation documents the bidder shall not be modified or requirements negotiated, in particular and in the bidding documents the tenderer shall not be modified or requirements shall be negotiated, standard terms.
3.5.4 establishment of contract and execution of contract
The establishment of the 3.5.4.1 contract
"Contract law" twenty-fifth article: "commitment contract comes into effect." Unless otherwise agreed by the parties, the two parties of the contract signed, stamped usually means that both parties agree to the contents of the contract, the acceptance becomes effective on the contract, the contract. In accordance with the "Bidding Law" to fulfill the bidding process and a survey, design, construction, supervision contract, often think of the tenderee tender documents issued by the offer, the bidder to submit the tender for the tender, tender to the tender issue a bid winning notice for commitment. Therefore, in accordance with the "Bidding Law" to fulfill the bidding procedures for engineering survey, design, construction, supervision contract, tender to the tender as a reconnaissance, design, construction, supervision contract.
Effect of 3.5.4.2 contract
"Contract law" forty-fourth stipulates: "the establishment of the contract in accordance with the law, since its establishment in force. The provisions of the laws, administrative rules and regulations shall go through the formalities for approval, registration as, in accordance with the provisions of." "The Supreme People's Court on the application of (Contract Law of the people's Republic of China) interpretation of several issues (a)" Ninth stipulates: "in accordance with the provisions of the contract law article forty-fourth paragraph two, the provisions of the laws, administrative rules and regulations of the contract shall apply for approval, or approval, registration and other procedures to take effect, in the court of first instance before the end of the debate the parties did not apply for approval, approval or failed to go through the registration procedures, the people's court shall determine the contract not become effective; laws and administrative regulations, the contract shall go through the formalities of registration, but not the provisions of the registration after the entry into force, the parties do not go through the formalities of registration shall not affect the contract, the contract object ownership and other property can not be transferred." Rule thirty-second: "the parties sign or seal the contract is formed when the parties conclude a contract in written form." Article forty-fifth states: "the parties may prescribe that effectiveness of a contract conditions. Epiphytic effect conditions of the contract, shall come into force when the conditions are fulfilled. The parties for their own benefit improperly prevent the satisfaction of a condition, the condition is deemed to have been satisfied; improperly facilitated the satisfaction of a condition, the condition is deemed not achievement." Article forty-sixth states: "the parties may prescribe a term for a contract. A contract shall become effective when the period expires, to. A contract shall become invalid when the period expires."
To sum up, reconnaissance, design, construction, supervision becomes effective at the time the first by the contract terms agreed, the parties may contract agreed conditions or the effective period, for example, if a party to provide performance bond or deposit contract will take effect after a party, or the agreement in accordance with the contract will take effect after buying insurance contract. If the parties have not agreed to the contract conditions or the effective period, since the parties sign or seal the contract is valid. For survey, design, construction, supervision contract for the record, clearance because of no law, regulations for registration is the investigation, design, construction, supervision and effective conditions of contract, so the reconnaissance, design, construction, supervision contract without registration does not influence the effect of the contract.
3.5.5 contracting fault liability
"Contract law" forty-second stipulates that: "the parties are under any of the following circumstances in concluding a contract, thereby causing loss to the other party, it shall be liable for damages: 1, under the pretext of concluding a contract, and negotiating in bad faith; 2, deliberately conceal the relating to the conclusion of the contract the important facts or providing false information; 3, other acts contrary to the principle of good faith." This article is China's "contract law" provisions of the contracting fault liability.
According to the "contract law" provisions of article forty-second, construction and engineering practice of contracting negligence responsibility mainly has three kinds of forms.
(a) "under the pretext of concluding a contract, and negotiating in bad faith". This is generally true opinion refers to enter into a contract for construction project negotiation party did not enter into contracts, but to harm their interests, or have their own interests and pretending to conclude a contract, and negotiating in bad faith. For example, the construction units and construction units had no intention of entering into a contract, deliberately and construction units ordered negotiations, leading to the construction unit loss and other construction units timely opportunity for concluding a contract.
(two) there is "fraud intentionally conceals important facts relating to the conclusion of the contract or provides false information". One of the contracting parties in the process of signing a contract refers to the situation, deliberately not relevant enough to affect each other to decide whether its contract to the other party notice, or intentionally will not exist objectively or not accord with objective fact data, provide information to each other. For example the construction people deliberately concealing its has not obtained the relevant qualification to contract projects and contract with the construction unit, cause the contract invalid caused by the construction unit losses.
(three) "other acts which violate the principle of good faith." This kind of behavior refers to the behavior of violating pre contract obligation, usually have the following conditions:
① not assist, notification obligations, for example: a Contracting Party in the agreement signed on to do not keep the appointment, causing the other party and from the cost of losses.
② did not inform obligation. One of the contracting parties in the contract, it shall inform the other party of the necessary information and, if not inform the other Contracting Party, resulting in loss of.
(four) the difference between liability and liability for breach of contract
The liability for breach of contract is established on the basis of the contract legal and effective, is the breach of the obligations under the contract, the contracting fault liability is based on the contract is not established, civil liability or the contract is invalid, revoked and produces, is the breach of the pre contract obligations.
The liability for breach of contract form of liquidated damages, compensation for losses, the actual performance, and the liability of culpa in contrahendo only (or compensation for the loss of reliance interest) a form of.

The fourth chapter of the construction contract performance

Section 1 General Provisions

General principles of implementation of 4.1.1 construction project contract
The construction project contract is signed, the contract is legally binding, the parties must firmly carry out the content of the contract, shall not be violated. The parties to a contract shall perform the contract of construction according to the following principles.
(a) comply with the principle of honesty and credit
Construction units and construction units should be in accordance with the contents of the construction project contract signed by both parties agreed time limit for a project, quality, project cost, complete, timely and fully perform the contract obligations, and to assist each other, timely notification of reasonable way.
(two) the principle of engineering quality as the center
The construction project is a construction project contract performance of the subject matter, construction project is qualified or comply with the contract is the construction unit is the basis of whether the use of engineering, construction units can achieve project. The delivery of construction engineering is a qualified construction contract goals.
(three) cost effective management principles
The project cost of construction project contract basis to valid, relates to the cost change, payment, settlement shall be timely, the procedures in place, prevent the project payment arrears and deduction of any.

The second section contract explanation

4.2.1 the necessity of contract explanation
Contract disclosure is an important system of contract management of construction engineering, refers to the construction unit (Contractor) contract management personnel to make the main content of contract based explanation, responsible person to learn the terms of the contract and the contract overall analysis results through the organization of project management and the project team, the enforcement and Implementation personnel familiar with the main content, the contract in the various provisions, management procedures, understand the construction unit of the contract liability and the scope of the project, all kinds of behavior of the legal consequences of the construction unit, so as to ensure the correct execution of the contract and prevent contract risk. It includes the process of contract analysis, contract disclosure, disclosure object questions, analysis, and presentation.
(a) contract disclosure helps to unify the contract parties understand the contract, avoid do not understand the contract or to contract inconsistent understanding to bring the work of the mistakes.
(two) contract disclosure to the parties to the contract, that contract to improve contract risk prevention measures, the prior control to contract risk.
(three) contract disclosure to contract further understanding of their internal boundary of right and duty scope, procedures and legal consequences, put themselves in a correct position in the contract, effectively prevent the rights and obligations of the unclear boundaries caused by internal and external duties dispute contract disputes, improve the efficiency of contract management.
(four) contract disclosure is advantageous to the enhancement of facilitating parties internal staff consciously implement the contract management procedures and systems and to take active measures to prevent and reduce errors and biases.
4.2.2 contract disclosure procedures
Contract explanation is the construction unit (Contractor) contract personnel and lawyers intention, to the members of the project contract, the contract statement point execution plan process. Usually can be carried out according to the following three levels:
(a) the construction unit responsible for presentation to the project department
Construction units to the project manager and project contract management contract disclosure, comprehensive statement contract background, contract work scope, objectives of the contract, contract execution points and special processing, and is responsible for the project put forward solution and project contract management of personnel, the formation of the written contract record.
(two) the project department person in charge to the project department person in charge
The man responsible for the project or appoint the contract management personnel to the project department person in charge of contract disclosure statement, contract, contract execution plan, the basic situation of the functional departments of the implementation outline, contract risk prevention measures, proposes and explains the functional departments of the problem, finally form a written record.
(three) the functional departments responsible person to the Executive
The functional departments in charge of contract explanation to the executive, the basic situation of the Department statement contract, the contract liability and contract execution points, risk prevention measures, and answer the question, finally form a written record.
All departments will work feedback to the lawyer and the project contract management, by the contract execution plan, contract management procedures, contract management measures and risk prevention measures to further revise and improve the final document, contract management, issued the executive staff, to guide its activities.
4.2.3 contract disclosure content
Lawyers for the parties to draft documents contract disclosure generally include the following contents:
(a) general situation of the project and the contract scope of work;
(two) the contract relationship and the rights, obligations and responsibilities involved in the contract between the parties;
(three) the contract period to control the total target and stage control, target control network and the key circuit description;
(four) the implementation of the provisions of the specification, standards and approval procedures and contract quality control;
(five) the provisions of material, equipment procurement, acceptance of the project contract;
(six) investment and cost control targets, especially the payment and adjustment of contract price conditions, methods and procedures;
(seven), the two parties of the contract dispute handling procedures and requirements;
(eight) the two parties of the contract liability for breach of contract;
(nine) the claim opportunity and treatment strategies;
(ten) the content of contract risk and the prevention measures;
(eleven) in document management requirements of the contract.
The third section construction project management

4.3.1 construction organization and schedule
Lawyers should prompt clients, the Contractor shall, pursuant to the contract, the construction organization design and engineering schedule plan submitted to the employer, the employer in the agreed time confirmation or amendment opinions; unit engineering group project stages of construction, the people I can according to the employer to provide drawings and relevant documents of the time, according to the schedule of unit project. The Contractor shall, according to the schedule of construction, accept the employer to progress inspection, supervision.
The construction organization design is the use of scientific management methods of comprehensive construction technology and economic documents, including:
(a) complete construction plan construction sub part of the project, quality assurance measures;
(two) the construction machinery mobilization plan;
(three) engineering material mobilization plan;
(four) the construction site layout and construction road plan;
(five), the winter rainy season construction measures:
(six) the reinforcement measures of underground pipelines and other underground facilities;
(seven) to ensure safe production, civilized construction, reduce environmental pollution and noise nuisance reduction measures.
The project schedule, is based on the division of engineering division as the object of construction project, a plan to cooperate with each other, between the construction time and segment control the engineering division overlapping relationship. The progress of the project plan should design and construction organization fit.
Determination of 4.2.3 construction, completion date
The start date is the appointed contractor contractor began construction of the absolute or relative date; date of completion is absolute or relative contract agreed date contractor contractor to complete the works under the contract scope.
Lawyers should prompt clients, contracts, the completion date of a contract, the parties. The contract is not agreed, the start date to the employer issued the notice of commencement date, date of completion the completion acceptance report can be submitted by the Contractor shall be the date; if the employer requires modification, by the contractor to the employer after modifying the acceptance date for completion date.
The lawyer reasonably prompt contractor, project completion and acceptance for the record submitted by the employer, not the completion date specified in the contract to the completion and acceptance of the record date.
4.3.3 construction period delay
A lawyer should be based on the contract that the contractor pay attention to the following situation, and timely written records:
(a) the employer fails to provide drawings and construction conditions about;
(two) the employer fails to pay about project advanced payment, progress payment, hampers the normal progress of the construction;
(three) the representative designated (hereinafter referred to the designated representative) did not provide the required instruction, approved according to the agreement, the construction can not be normal;
(four) the design and engineering change increased;
(five) the water, non week contractor for electricity, gas stop causing suspension of more than 8 hours;
(six), irresistible force;
(seven) the hidden engineering in concealed before, the Contractor shall notify the employer to check, the employer is not timely inspection;
(eight) the employer's raw materials, equipment, site, not provided according to the agreed time and requirements.
The employer violates the contract law article 278th, article two hundred and eighty-three and the provisions of article two hundred and eighty-four, the Contractor shall be written by the developer within a reasonable period obligations. If the employer fails to fulfill the obligation within a reasonable time, the Contractor shall have the right to request the employer compensation as a result of work stoppages, due to loss, and the corresponding extended period of time. The lawyer reasonably prompt contractor in engineering postponed, shall timely inform the employer or a designated representative.
4.3.4 construction projects during the period of suspension of confirmation
The contractor notice, the employer has failed to fulfill its obligations within a reasonable time, idle time from the notice date until the shutdown due to elimination of the date of. The lawyer reasonably prompt clients, pause and resume construction shall present a written form.
4.3.5 construction engineering overdue completion responsibility
The Contractor shall, in accordance with the agreed completion date or the employer agreed extended time limit for completion, the Contractor does not in accordance with the agreed completion date or the employer agreed extended time limit for a project completed, the Contractor shall bear the liability for breach of contract.

The fourth section construction safety management of Construction Engineering

Security obligations of 4.4.1 construction unit
The construction unit shall submit the design documents survey, the national standard engineering, and design units, supervision units, construction units for joint examination of construction drawing, answer the questions of the construction unit. A lawyer should remind the construction unit, involves changes in the main load-bearing structure of the building renovation project, the construction unit shall design units supporting the original design unit in the Construction Committee or a corresponding qualification of design; no design, no construction.
The construction unit shall provide the underground pipeline data related to the construction site to construction enterprises. The construction unit shall provide the construction site and adjacent areas, power supply, water supply, drainage, gas, heating, communication, radio and television and other underground pipeline data to the construction unit, meteorological and hydrological observation data, the relevant information of adjacent buildings and structures, underground engineering, and ensure the information is true, accurate, complete.
The construction unit shall not be compressed schedule stipulated in the contract. The construction unit shall not express or implied construction units to purchase, lease, does not meet the requirements for the construction safety safety protective equipment, machinery equipment, construction machines and accessories, fire fighting facilities and equipment.
A lawyer should remind the construction unit, the following construction units should be in accordance with the relevant provisions of the state own or entrust the construction unit for approval procedures:
(a) the need for temporary occupation of land beyond the planned area approved;
(two) may be damaged roads, pipelines, power, telecommunications and other public facilities;
(three) need to temporary suspension of water supply, power, interrupt traffic;
(four) the need for blasting operations;
(five) other circumstances required for approval procedures in accordance with the provisions of laws, rules and regulations.
Security obligations of 4.4.2 construction unit
The construction unit in charge of the project construction safety of construction engineering project, implementation of safe production responsibility system, safety regulations and operating procedures, to ensure the effective use of safe production cost, and according to the characteristics of the formulation of tissue engineering construction safety measures, eliminate the hidden danger of accidents, timely, truthful reporting production safety accidents.
Implement the general contractor of the construction project, the overall contractor is responsible for construction site safety in production. The overall contractors and subcontractors subcontracting engineering safe production shall bear joint and several liability. The subcontractors shall be subject to safety production management of the overall contractor, subcontractor does not obey the administration of production safety accidents caused by the subcontractor, bear the main responsibility.
Construction enterprises in the preparation of construction organization design, should formulate appropriate safety technical measures according to the characteristics of construction engineering; professional engineering project should be strong, special safety construction organization design, and safety technical measures taken.
Construction units to might be damaged by the construction of the adjacent buildings, structures and underground pipelines, it shall take special protective measures.
The construction unit should vary according to different construction stage and the surrounding environment and season, climate, take corresponding construction safety measures in the construction site. The construction site of the temporary buildings shall meet the safety requirements.
The construction unit shall comply with the provisions of relevant laws and regulations, environmental protection, take measures on the construction site, to prevent or reduce the dust, waste gas, waste water, solid waste, noise, vibration and construction of lighting on people and the environment and pollution hazards. Construction project in the city within the city, the construction unit shall be closed around the file on the construction site.
The construction unit shall establish and improve labor production safety education and training system, strengthen the education and training of workers in safe production; without a safety education and training of personnel, shall be permitted to work.
The construction unit shall establish a fire prevention responsibility system on the construction site, determine the person responsible for fire safety, fire, electricity, making the use of flammable and explosive materials, fire safety management system and operating rules, establish fire exits, fire water, equipped with fire protection facilities and fire extinguishing equipment, and setting up clear signs at the entrance to the construction site.
4.4.3 engineering insurance
The lawyer may recommend to the employer to insure construction or erection all risks insurance, make people more comprehensive security through bidding or negotiation. The lawyer can remind the Contractor shall buy accidental injury insurance for workers engaged in dangerous operations.

The fifth section construction materials, equipment supply

4.5.1 client assign materials and equipment
The lawyer can remind the employer: in accordance with the contract, the building materials, components and equipment procurement by the contracting unit of the project, the developer may not specified for engineering contractor purchased the building materials, components and equipment or designated production factory, supplier.
4.5.2 the employer the supply of materials and equipment
A lawyer should remind the employer within the time agreed upon in the contract of supply by the supply of materials and equipment, and the supply of materials and equipment shall be responsible for the quality.
The 4.5.3 contractor procurement of materials and equipment
A lawyer should remind the Contractor: by the procurement of materials and equipment, the employer shall not designate the manufacturers or suppliers.

Sixth day visa and claim management of construction project

The important significance of 4.6.1 strengthening visa and claims management
Lawyers should be prompted to the contractor and the employer, or that change the design drawings or change the workload of technical requirements, it shall timely request in writing the employer written confirmation of this change, and in accordance with the agreed procedures to submit engineering change cost adjustment report submitted to the employer.
Lawyers should be prompted the contractor, disputes arising in engineering quantity, should supplement agreement, as between the two sides in the process of construction of the minutes of the meeting, engineering change orders, engineering and other written documents to confirm the reconciliation visa form; if there is no visa and other written documents to the contractor, prove the consent of the employer at the time of their construction, other non written to prove the project quantity after evidence, testimony, and other legal procedures to prove the actual quantities of the fact that the evidence of the authenticity, legitimacy and relevance circumstances, under certain conditions, can also be used as the basis for the calculation of quantities.
4.6.2 project claim
Engineering claim is an engineering contract either of the parties to obtain a written confirmation according to the contract agreed to pay various fees, extended period of time, compensation for losses due to failure to, within the time limit agreed upon each other in a kind of right claim is a unilateral claim. The legal characteristics of a claim:
(1) and engineering visa is characteristic of both legal differences. Engineering claim is the two sides failed to negotiate consistent results, is a unilateral claim requirements, is a unilateral legal act.
(2) involving the characteristics and engineering visa benefits have been determined, the project claim interests involved have yet to be determined, is a kind of expecting rights.
(3) general do not rely on engineering visa from the other evidence is different, the project claim is one that has not been confirmed right, must depend on the evidence.
"Construction contract (model version)" the provisions of GF-1999-0201 claims procedures: the employer fails to pay the agreed contract costs, extended period of time, to compensate for the losses, can the contractor in accordance with the following provisions to the employer's claim:
(1) have a legitimate claim reason, and there is evidence of claim event occurs;
(2) 28 days after the incident in the claim, notice of claim to the employer;
(3) the employer shall give a reply within 28 days of receipt of notice of claim within, or require the contractor to add further claim reason and evidence, the employer fails to reply within 10 days or not to the contractor for further requirements, shall be deemed to have accepted the claim.
A lawyer should remind the contractor notice information management in the construction process, and in the presence of contract claim matters agreed upon in time according to the contract claim claim procedure.
4.6.3 engineering visa
Visa project engineering contractor meaning both parties in the construction process according to the contract agreed to pay the bills, extended period of time, to compensate for the loss of the said supplemental agreement consistent, mutual written confirmation of visa is a settlement or final settlement increase project cost by it. The legal characteristics of a visa:
(a) engineering visa is the consensus results, is a bilateral legal act;
(two) the project visa interests involved have been identified, can be directly used as engineering settlement credentials;
(three) in the process of construction engineering visa is the routine work, generally do not rely on evidence.
A lawyer should remind the Contractor: non contractor causes delays, engineering change, agreed by the employer to bear the risk, the breach of contract the contractor increased costs, expenses, should be in accordance with the procedures stipulated in the contract to ask the employer to visa.
"Construction contract (model version)" provisions of the GF-1999-0201 visa and claims:
(1) 6.2: (the employer) general provisions engineer visa
(2) 7.2: general regulation project manager visa
(3) 4.1: the intersection graph of visa
(4) 7.3: visa emergency construction
(5) 9.1.1: commissioned the construction drawing design of visa
(6) 10.1: construction organization design visa
(7) 11.1: start visa extension
(8) the 12 paragraph: the employer to suspend the construction of visa
(9) 13.1, 13.2 paragraph: delay visa
(10) 14.3: ahead of schedule visa
(11) 17.1: acceptance of concealed work visa
(12) 18: re examination of visa
(13) 19.2: Engineering commissioning visa
(14) the 12.1 paragraph: the visa security protection measures
(15) 21.2: visa risk construction safety measures
(16) 23.4: price adjustment of visa
(17) 25.1: Engineering Quantity Calculate visa
(18) the 26.3 paragraph: the contractor agrees to pay the price for visa extension
(19) the 26.4 paragraph: the contractor work visa (notice)
(20) 27.2: a feeding material visa
(21) the 28.1 paragraph: the contractor procurement of materials and alternative materials visa
(22) the 29.3 paragraph: the rationalization of the proposed cost allocation and revenue sharing visa
(23) 31.1: determine the change of price visa
(24) 32.1, 32.2: acceptance of completion settlement data of visa
(25) 32.7: rejection, completed visa
(26) 33.1, 33.2: acceptance of completion settlement data of visa
(27) 36.2: submit visa claim data
(28) 39.2: not a force majeure event visa
(29) 42.1: the use of patent technology application visa
(30) 43.1: find the visa protection measures of underground obstacles and cultural relics
4.6.4 visa project and claims management
Lawyers should prompt construction contractors, the employer must strengthen the visa and claim management:
(a) to improve and strengthen the timely visa, according to the claim of the consciousness and self-consciousness, the visa and claim as the most effective means to reduce cost and improve benefit.
(two) to establish the system of strict document and data storage, strengthen professional and targeted visa and claim management.
(three) the quantitative management responsibility to the employer's representative contractor project manager, put an end to the sign is not checked, the compensate situation.
(four) the visa and claim the time limit and procedures, which should be put in the construction process should be timely.
(five) further study method and practical effects of visa claim, friendly consultation and mediation is an effective method for.
(six) at any time, claims visa consulting, hire knowledgeable lawyer or professional consulting, services are valid visas, claim.


Confirmation and payment section seventh construction projects

4.7.1 general provisions
Project price by the contract price and contract price to pay additional components, different time of payment, progress payment, settlement and warranty. The employer should according to the time and conditions of contract pay full price for engineering.
Lawyers should be prompted to the contractor, the employer to postpone the payment of the project, can actually ask the employer to bear the interest on deferred payment, and promised to stop construction and the termination of the contract.
4.7.2 engineering advance payment
Lawyers can actually reasonably prompt the Contractor shall get the time advance of the project, the employer; not in accordance with the agreed payment, the contractor may submit a written notice, to the employer is still not paid, the contractor may suspend the work and ask the employer to bear the liability for breach of contract.
4.7.3 project progress payment
Lawyers should prompt the contractor at the time stipulated in the contract submitted to the employer for work performed report, supervise and urge the Contractor under the contract agreed to identify and work progress payment. Lawyers can prompt the reasonable quantities of time, and not timely measurement possible consequences.
4.7.4 completion settlement verification and payment
The construction contract agreed by the parties, the Employer receives completion settlement documents, does not reply within the prescribed period, as the completion settlement conditions for approval, the contractor in accordance with the completion of the settlement documents as basis for settlement. Lawyers should be prompted to Contractor shall be held as soon as possible to submit the completion settlement documents. Lawyers should be prompted to the employer shall give a reply within reasonable time from completion settlement documents inside, if can be challenged, except otherwise agreed contract period. Lawyers can prompt the reasonable quantities of time, and not timely measurement possible consequences.
Confirm the 4.7.5 fixed cost settlement
Fixed price contract, refers to the contracting party at the conclusion of the contract of project price settlement has been identified, regardless of profit and loss, regardless of the actual engineering quantity, are not separate settlement, as long as the completion of the performance of the contract, the employer should unconditionally by the fixed price contract agreed to pay. Lawyers should prompt clients, for the agreed fixed price settlement price in accordance with the process, without identification to determine the construction cost.
4.7.6 project loan interest
The lawyer reasonably prompt the client, in the calculation of arrears of engineering interest, principal amount owed project payment shall be specific and definite; owed project payment for interest per annum standard agreed, in accordance with the agreement; no agreement, calculated in accordance with the people's Bank of Chinese similar loan rates released earlier.
The lawyer reasonably prompt the contractor, for the time when the interest payable from the date of the project price per annum. If the time of payment was not prescribed or clearly prescribed, the following time as the payment time:
(a) project has been the actual delivery, as the date of delivery;
(two) a construction project without delivery, to submit the completion settlement documents.
(three) construction of non delivery, project cost is not settled, as the date of prosecution.
The 4.7.7 project quality warranty payments
Quality warranty gold usually does not exceed 5% of the total price of the project, the payment period is generally one year after completion of the project acceptance expires. The lawyer reasonably prompt the client, pay attention to whether the relevant procedures agreed warranty gold interest and warranty responsibility deduction repair fund.
The 4.7.8 project performance guarantee
The lawyer can remind the contractor in accordance with the contract agreed to provide performance guarantee, performance guarantee form the agreement is not clear, the contractor should provide a guarantee or bank guarantee, but not providing margin. The lawyer can remind the employer actually in the contractor to provide performance guarantee of payment project.

The eighth section construction project quality management

4.8.1 general provisions
Construction engineering quality shall be up to the standard construction units and construction units to determine quality standards, assessment to quality inspection assessment standard country or industry as the basis. Because the construction unit of the project quality is not up to the agreed quality standards, the construction unit shall bear the liability for breach of contract.
The current "uniform standard for construction quality acceptance" (GB50300-2001), acceptance of construction quality of 14 Building Code for construction quality acceptance of building engineering in our country the mandatory standards, the standards for engineering quality inspection and evaluation according to the quality of item, branch, unit engineering is divided into "qualified" and "unqualified" two grade. A lawyer should remind the parties, system implementation of the standards, the construction units and construction unit of the project quality standards agreed invalid; the parties agreed project quality "a cup", "Innovation Award", the construction unit of the project quality is not up to the agreed standard, the construction unit should bear the corresponding liability for breach of contract.
4.8.2 unit of construction project quality in terms of rights and obligations
Lawyers should be prompted to the construction unit must provide the original data with respect to the engineering construction supervision units, construction units, including survey results file, after a review of the construction drawing design documents, and the original data must be true, accurate, complete.
The construction unit shall not express or implied, construction units in violation of mandatory construction standards, lower the quality of the construction project.
Construction units in the construction permit or construction report, shall go through the formalities of project quality supervision in accordance with the relevant provisions of the state.
In accordance with the contract, the construction unit shall purchase the building materials, building components and fittings and equipment must be consistent with the design documents and contracts. Will not express or imply that the use of substandard construction unit building materials, construction parts and equipment.
In the course of engineering construction, such as the occurrence of the finished project quality is not qualified, the requirements of the construction unit construction unit repair, construction unit refused to repair, the construction unit may terminate the contract for construction.
4.8.3 unit in charge of construction project quality in terms of rights and obligations
Lawyers should be prompted to construction quality construction enterprises for the construction project is responsible for. Construction engineering quality is a prerequisite for the employer to pay the contract price, construction quality is unqualified, the construction unit shall not be entitled to the project cost.
The construction unit shall obtain the appropriate qualification certificate in accordance with the law, and contract projects in its scope of qualifications.
Construction units must be in accordance with the construction design drawings and construction technical standards, not allowed to modify the engineering design, not cut corners. Construction units in the construction process to find the design documents and drawings error, it shall timely put forward opinions and suggestions.
Construction units must be in accordance with the contract requirements of the engineering design, construction technical standards and contract, the building materials, building components and fittings, equipment and merchandise concrete inspection, inspection shall have a written record of signature and hand; without inspection or inspection unqualified, shall not be used.
The construction unit shall establish, improve the construction quality inspection system, strict process management, quality inspection and record for hidden works. Before these items are covered, the construction unit shall inform the construction unit and construction engineering quality supervision institutions.
Construction personnel to the structural safety of the test blocks, test cases and related materials, should live in the construction engineering supervision unit or units under the supervision of sampling, and deliver quality testing unit having the appropriate grade of qualification testing.
The construction unit shall timely investigate and modify the construction engineering quality problems arise in the construction.
Construction units should be in after the completion of the project in time to submit completed construction units, for the completion of the project acceptance.
The construction unit shall participate in the organization's acceptance.
On the completion of the construction project unqualified acceptance, the construction unit should rework, to the qualified standard, such as substandard quality is caused by the construction unit, repair costs borne by the unit in charge of construction, repair and after acceptance, the construction unit shall be advocated project clearing price.
In the completion of construction, the quality dispute, a lawyer should remind the construction unit as soon as possible or to assist the client identification requirements, such as identification and inform the unqualified, is generally not identified as during the extended period of time.
After the warranty warranty to the lawyer people not to perform the obligations of maintenance fruit, lawyers shall inform the warranty, such as the result of damaged buildings or cause personal, property damage, guarantee people need to bear the responsibility for compensation.
4.8.4 projects and project acceptance
Construction project with hidden conditions or to intermediate acceptance position agreed, the Contractor shall give written notice to the employer in the post acceptance; acceptance, the contractor may continue the construction; the unqualified acceptance, the contractor modifications within a limited period of time after the re approval. Lawyers should be prompted to the Contractor by the employer after receiving the notice is not timely to hidden works acceptance, not only can be extended period of time, but also have the right to request the employer for compensation for the losses, due to.
4.8.5 project completion acceptance
After completion of the construction project, the construction unit shall conduct acceptance inspection according to the construction drawings and specifications, the state promulgated the rules of construction inspection and quality inspection standard. Completion of the project construction, the building roof, wall there shall not be leakage, cracking and other defects; on the quality defects have been found, the construction enterprises shall repair.
The lawyer reasonably prompt the contractor, the employer in the contract received the completion acceptance report within 28 days after the organization acceptance in the contract, and give the approval or amendment opinions within 14 days after acceptance; fails to organize acceptance or not amend, can be seen as the completion acceptance report approval.
Project completion and acceptance by the contractor to the completion acceptance report, as the date of the actual completion date. The project by the employer require modified through the completion of acceptance of the amendment, actual completion date for the contractor to the employer approval date.
The lawyer reasonably prompt clients, both sides was not about the completion date of construction project completion date of a dispute, should be treated respectively according to the following circumstances:
(a) construction project final acceptance, the final acceptance date for the completion date;
(two) construction project final acceptance, the final acceptance date for the actual completion date;
(three) the contractor has been submitted to the completion acceptance report, deliberately delayed the approval of the employer, the Contractor shall submit the inspection reports of the day for the actual completion date;
(four) construction project without a completed acceptance, the unauthorized use of the construction project, has been the transfer of possession, the actual completion date.
4.8.6 without the acceptance of unauthorized use of the consequences
The completed construction project after the experience of qualified, before delivery; without acceptance or unqualified acceptance, not to use. The lawyer reasonably prompt the employer, in the project without acceptance unauthorized use, shall not use part of the project does not meet the prescribed quality requirements and the resulting staff, loss of property to require the contractor to compensation. But within the reasonable life span, the contractor must ensure the foundation and the main structure quality, and bear civil liability.
4.8.7 completion and acceptance of quality records
According to the "Regulations" construction quality management of the construction project in seventeenth, quality acceptance should be competent departments as government for the record. Lawyers should be prompted to the construction unit in time for quality record formalities.
　　
The ` ninth day construction warranty

4.9.1 general provisions
Construction contractors in the construction units to submit to the project completion acceptance report, shall issue the quality warranty letter to the construction unit. Should make clear construction project scope of warranty, warranty period and warranty responsibility for quality warranty book.
Construction engineering quality problems occur in protecting the teeth range and within the warranty period, the construction unit shall perform the obligations of maintenance, and bear the responsibility for compensation for the losses.
Under normal use conditions, the minimum warranty period for construction project:
(a) infrastructure projects, the building foundation engineering and the main structure of the project, reasonable use fixed number of year of the project design document;
(two) leakage proof roof waterproofing, waterproofing for the bathroom, the housing and the outer wall, for 5 years;
(three) the heating and cooling system, for the 2 heating period, cooling period;
(four) electrical pipelines, water supply and drainage pipeline, equipment installation and decoration works, for 2 years.
Other projects warranty period agreed by the employer and the contractor.
Construction warranty period, calculated from the date of final acceptance.
The lawyer can advise the parties of the construction project quality warranty liability insurance liability insurance, and the insured and beneficiary. As has been set of engineering insurance, shall provide warranty policy since the release of all warranty gold.
Implementation of the 4.2.9 project warranty obligations
Belong to the scope of warranty, the content of the project, the Contractor shall, after receiving the warranty notice within 7 days from the date sent to the warranty.
The contractor is not within the agreed time limit for warranty, the employer may entrust others to repair.
Emergency repair of the accident, the contractor after receiving notice of the accident, it shall immediately arrived at the scene of the accident repair.
For the quality problem relates to the safety of the structure, should be in accordance with the "Regulations" quality warranty of housing construction project, report to the local construction administrative departments immediately, take safety precautions; design units from the original design of a unit or a corresponding level of quality repair scheme, contractors warranty.
Quality warranty is completed, the employer shall organize acceptance.
Responsible for the 4.9.3 project warranty costs
Warranty costs resulting from the quality defects liability Fang Chengdan.

The tenth section of construction project cost

4.10.1 general provisions
Based on 4.10.1.1 service
Construction project cost through in every stage of the whole process of construction, the feasibility study stage, the project survey and design phase, exceed the standard bidding stage, construction stage, completion, knot (must) calculation stage, quality warranty period. At the same time, the project cost and construction design, construction scheme, construction technology, and engineering quality is closely related to. Clear for lawyers in the construction cost of legal affairs, program content, according to the "PRC Construction Law", "contract law of PRC", "the people's Republic of China invite public bidding bids law", "construction quality management regulations" and other laws and regulations and construction administrative departments of the relevant provisions, the enactment of this chapter, to handle the construction cost of legal affairs for lawyers for reference.
4.10.1.2 scope
Lawyers in the full process or stage service involved in the project cost for legal services for construction projects, can refer to these guidelines apply to.
Lawyers in litigation or arbitration transmission project cost dispute, can also be a reference guide.
4.10.1.3 project cost implications
The project cost according to the quota provisions of the state and the two sides agreed in the contract of project price. It consists of project cost (direct costs and indirect costs), profit (fee), taxes, etc.. Budget, pre tender, bidding and completion are composed of cost, taxes, profit construction usually.
Stage feasibility study stage of 4.10.2 construction project
The feasibility study and the engineering construction cost of 4.10.2.1
Main contents of the feasibility study of construction units to the construction of the project: the project is located in laws and regulations policy, project technical demonstration, economic evaluation, the estimated total investment, investment benefit and risk of investment etc.. The project cost is an important part of the content of the investment estimate the feasibility study report of the construction project.
4.10.2.2 in the preparation of feasibility study report content validity period, lawyers should focus on the review of research reports and the preparation of the subject:
(a) construction units to the preparation of feasibility study report, the lawyer of engineering cost should focus on the examination of the reliability, validity, prepared on the basis of legitimacy.
(two) the construction unit entrusted consulting units in the preparation of feasibility report, feasibility report of consulting institutions lawyers focus on review;
Qualifications 1, consulting firms and consultants;
Whether 2, consulting documents related to the project cost of construction, the existing provisions in accordance with national planning, quotas and other relevant government departments and requirements.
4.10.2.3 feasibility study report for approval procedures
Feasibility study report of the construction project according to the investment scale, investment channels, the subject of investment, according to the different procedures, different levels, different permissions, approved by the examination and approval departments corresponding has the legal effect. The main submitted to the examination and approval procedures:
(a) the superior departments in charge of examination and approval;
(two) approval of the construction administrative departments of local;
(three) by the State Council or the development and reform of the planning department for approval or for the record.
4.10.3 design stage of construction project cost
4.10.3.1 budgetary estimate and budget
Construction projects in the design stage is the key to control construction cost of the construction unit, design scheme, design the construction methods, materials, equipment selection and project cost are all closely depending on the design stage is the preliminary design (expansion of the design), construction drawing design stage corresponding to the composition of project cost "two" is the budgetary estimate and budget.
4.10.3.2 lawyers estimate review at the preliminary design stage should pay attention to:
(a) the design units and design personnel qualification;
(two) the economic, practical technical measures to the preliminary design scheme of project cost;
(three) the economic rationality of design the appearance of the building, structure, function;
(four) equipment, facilities and housing structure selection of proportionality, rationality;
(five) budgeting basis and legitimacy;
(six) budget and investment estimation of cohesion and anastomosis and difference adjustment.
4.10.3.3 lawyer budget review in the construction design stage should pay attention to:
(a) the construction method, the construction drawing design and illustrates the construction process in order to meet the safety, reliability and other functions, is consistent with the economic, practical principles;
(two) whether the budget according to meet the current national regulations and administrative departments of the;
(three) the budget and budget, investment estimate the coherence or consistency, if exceeding budgetary estimate or estimated, it is necessary to analyze the reasons, and puts forward the method of adjusting. Especially the state fiscal investment projects require additional investment funds should be according to the examination and approval procedure management scope timely apply for approval, or amend the design, in order to reduce the scale of construction, reduce the amount of construction and engineering cost.
4.10.4 construction bidding and bidding stage cost
4.10.4.1 general note
Bidding is the employer and the Contractor through market competition, fairness, choose the contractor and the projects contracting activity. According to the law through the bidding procedures, bearing, the project is an important measure to ensure the project cost control, project quality. Lawyers in the bidding process, according to the "construction law", "the bidding law" and "contract law" the relevant provisions of the bidding documents involved in the project cost base, business standard, technology standard, construction organization design and other content review.
4.10.4.2 lawyer to the bid invitation documents bid should pay attention to review:
(a) budget basis and legitimacy, base price shall not be lower than the cost price;
(two) the three elements of the construction drawing budget group: the engineering calculation rules, the unit price basis (fixed price, market price, reference price), and reasonable rates apply standard;
(three) the bid price downward float rate, the price may not be lower than cost price determination.
4.10.4.3 lawyers for business in the bidding documents should be standard review:
(a) consistent construction scope and budget quota subheadings, engineering quantity corresponding with and without omission;
(two) the contract price which is the fixed price contract, unit price contract, cost plus incentive fee contract. If the contract price is fixed, it should be agreed cost adjustment method and conditions, the cost price of the meaning or standard;
(three) to increase the project cost or reduced engineering cost economic visa program, permissions, aging;
(four) completed project settlement procedures, methods, basis, aging;
(five) the optimization and rationalization proposals relating to the construction method of saving construction cost of the audit, accreditation procedures, incentive method.
(six) the calculation method of quality award criteria,, validation procedures.
4.10.4.3 law on Technology in the bidding documents should be noted when examining standard:
(a) the construction technology measures to the project cost;
(two) standard technical specifications;
(three) save the construction method of cost basis;
(four) the standard selection of facilities, equipment, material basis.
4.10.4.4 lawyers to the construction organization design review should pay attention to:
(a) the preparation of construction organization design basis;
(two) based on the principle and approach, ratio of labor for each job preparation;
(three) rationality basis of mechanical equipment;
(four) the rationality of construction site layout.
4.10.5 construction stage of the project cost
4.10.5.1 general note
Changes in construction engineering project cost in the process often involves all aspects of the construction phase of the process, namely the construction drawing changes will lead to cost increase or decrease; change the construction scheme, construction method, construction technology lead to the change of project cost; construction materials, equipment, facilities, or changes in market prices, or lead project cost of the changes; construction quality, construction will also cause the cost variation. A lawyer should be based on the actual situation of the construction site, in accordance with the law for the parties to provide prompt review.
4.10.5.2 joint examination of construction drawing
The construction drawings are clear scope of construction, construction content, construction methods, the use of building materials, equipment brand, specifications of the project, construction units should be carried out before the construction drawings and organize the relevant units.
(a) subject review time and organizations to participate in the joint examination: before the start of a month, by the construction unit to convene and preside over, participate in the design, supervision, construction cost consultation unit, construction unit;
(two) joint examination of construction drawing content: construction drawings by Design Institute verify and correct wrong; drawings be wrong or missing modification; the use of new materials or alternative materials cost savings have reasonable suggestions on construction method, not discussed confirmation; do not clarify the drawings, construction methods; to increase or decrease the sub aim to be adjusted; the aforementioned are related to the project cost. Therefore, the relevant units shall, according to the construction drawings changes, the cost increase necessary report, according to the contract of the program or plan to adjust.
4.10.5.3 started to review the conditions
Construction projects have a lot of preparatory work before the start of construction units, including through legal construction, employment permit procedures, technology, construction sites and other conditions, lawyers suggested that clients review or issue commencement report, compliance with the conditions to start the main examine the following contents:
(a) has complete and the agreed conditions started the statutory procedures of achievement: the construction procedures and the construction permit;
(two) construction technology conditions are available that coordinate, leveling point, underground pipeline data are available;
(three) the construction site, water, electricity and other accords with the "three links one ping" conditions.
Contract review performance during 4.10.5.4 construction
Features of construction process is long, change, involving a wide range, therefore, the formation of the written change a lot of information in the construction process, both sides agreed to change is a part of the contract, is based on the settlement of project cost.
(a) with single, single with the examination of the engineering technology approved
Fact 1, construction content change;
2, engineering quantity, quality and duration of design alteration, content, procedures, authorization visa subject review;
The quantitative standard and 3 calculation, engineering change review.
(two) the progress of engineering image as agreed in the contract and completed review
1, the image of progress node and the progress of the payment standard;
2, the finished project quantity check;
3, the finished project amount of nuclear test.
(three) hidden works acceptance and review (intermediate)
1, the organization to participate in the inspection of the body and its functions;
2, the acceptance of the program specification and standard;
3, the engineering data complete standard (including materials production license, certificate, test certificates, strength of concrete, mix proportion data).
Effect of 4.10.5.5 prolongation reason review
(a) to change the design of the project increased;
(two) the project construction units for the increased amount;
(three) from a process from construction before and after interaction management;
(four) a natural disaster or other force majeure events.
4.10.5.6 is not a force majeure event review
(a) can not be met, the inevitable can not be identified, could not overcome the event of force majeure;
(two) to stop or prevent not to expand the loss measures;
(three) not programmable and aging resistance after the incident report.
4.10.5.7 Project Completion Acceptance Review
Construction units to complete the construction task of the contract, namely, the completion of the project, construction units should be to declare the completion of acceptance, a lawyer to help review the following matters.
(a) different duties and organization, to participate in the inspection body;
(two) acceptance of the procedure, aging, not timely acceptance or non acceptance of the consequences;
(three) acceptance norms and standards (GB, enterprise standard, the standard contract);
(four) assume responsibility for quality defect identification and repair costs;
(five) summary, finishing engineering data, and bound by relevant departments.
(six) to the relevant departments of acceptance for the work.
4.10.6 junction (must) be completed stage
4.10.6.1 general note
The completion of the project through acceptance, the construction units, construction units should settle the total project cost, to determine the final cost and project final payment amount. Construction units, the construction unit shall be carried out their financial accounts of the project cost, to check the project benefit. Lawyers should be prompted to assist parties or on settlement cost on the completion of the construction, review or audit to audit the units issued by the audit report.
4.10.6.2 of the project completion settlement examination
(a) completion time, have agreed in the contract as agreed, no agreed to by the Ministry of construction "construction contract pricing and contract management approach", "clearing price construction procedures" provisions of the time for settlement;
(two) the completion settlement basis:
Calculated on the basis of engineering quantity: other information and that the construction drawings, site visa, construction contract, scheme, construction organization design bidding book relates to the engineering cost;
Quota basis: quota (price, cost, rate) application, to determine the three material content and amount of material difference, labor costs, according to price adjustment method. The contract has an agreement according to the agreement, no agreement on during the construction period of the quota according to the market information price adjustment materials, artificial price, quota without sub aim at market price.
(three) the scene visa validity review
In accordance with the contract, validity of visa procedures, permission to review visa.
4.10.6.3 on the valuation unit valuation report review
(a) valuation, identification of units and personnel qualification, qualification examination;
(two) valuation basis, the final cost composition on the basis of review;
(three) the engineering quantity calculation method, cost calculation, rates apply review.

To fulfill the eleventh Construction Engineering Survey, design, supervision and consulting contract

Perform investigation, design contract project 4.11.1
Investigation, the basis for the design of 4.11.1.1 construction project
Lawyers should be prompted to the construction unit must provide the original data related to construction projects to reconnaissance units, and the original data must be true, accurate, complete. Investigation, design documents for construction project, should is based on the following documents:
(a) the approval documents of the project;
(two) city planning;
(three) the compulsory standards for project construction;
(four) investigation, design depth of construction projects of the state in accordance with the requirements of.
Preparation of 4.11.1.2 survey, design documents and submit
Preparation of construction engineering surveying documents shall be true, accurate, meet the construction project planning, site selection, design, construction and geotechnical governance needs.
Preparation of project design documents, should meet the needs of files and control the establishment preliminary design budgetary estimate.
Compiling preliminary design documents, should be prepared to meet the need of bidding documents, the main equipment and materials ordering and preparation of construction drawing design documents.
The preparation of construction drawing design documents, shall meet the requirements of equipment and materials procurement, non-standard equipment production and the needs of the construction, and indicate the construction reasonable service life.
In the design documents materials, parts, equipment, must specify the specifications, models, technical performance indicators, the quality must meet the standards stipulated by the state. In addition to the special requirements of building materials, special equipment and production line, design units shall not designate manufacturers, suppliers.
Investigation, design units shall submit the survey, design documents according to the agreed time, overdue submitted shall bear the liability for breach of contract.
The 4.11.1.3 survey, design changes to a file
Construction units, construction units, supervision units shall not modify the construction survey, the design document; the need to amend the construction engineering survey, design documents, shall survey, by the original construction project design unit modification. The original construction engineering survey, design units, construction units written consent, may also entrust other corresponding quality of the construction engineering survey, design units to modify. Modify unit shall undertake the corresponding responsibility for reconnaissance, design file modification.
Supervision units, construction units found construction surveying, design documents do not meet the mandatory standards for construction projects, the quality stipulated in the contract, it shall report to the construction units, construction units have the right to request the construction survey, investigation and design units, the construction project design documents to supplement, modify.
Design document of construction investigation, need to make major changes, the construction unit shall report to the original examination and approval authority for approval, can be modified.
4.11.1.4 construction drawing review
National implementation of construction drawing design documents (including the survey documents) review system, the construction plan review body that the construction units in the construction drawings and design documents shall be received after the times and the Department in charge of construction of construction drawings and design documents for review; without examination and approval, shall not be used. The construction unit shall not express or implied design units in violation of mandatory standards for construction, reduce the construction engineering quality.
The 4.11.1.5 survey, design document review
Construction engineering survey, design units shall, in the construction, the construction units and supervision units that the intention of reconnaissance, design of construction engineering, construction engineering survey, design documents to explain. Investigation and design units, construction projects shall timely resolution of reconnaissance, design problems appearing in the construction. Design unit shall participate in the analysis of quality accident of construction engineering, and for any quality accident due to design, put forward the corresponding solution.
The 4.11.1.6 survey, design responsibility
Investigation, design units shall conduct the surveying, designing according to the compulsory standards for construction projects, and is responsible for the survey, design quality. Registered architect, registered structural engineers, registered practitioners in the design documents should be signed, responsible for the design document.
Investigation, design units in any of the following acts causing loss of construction unit, shall bear the liability for compensation according to law:
(a) investigation, design units not in accordance with the mandatory standards for construction projects, survey and design;
(two) the design units are not based on the investigation of engineering design documents;
(three) design units designated building materials, building components and fittings factory, supplier;
Implementation of the 4.11.2 engineering supervision contract
Lawyers should be prompted to engineering supervision units shall obtain the qualification certificate of corresponding grade and contract projects in accordance with the law, in its scope of qualifications.
Engineering supervision units shall, in accordance with laws, regulations and relevant technical standards, design documents and construction project contract, the implementation of supervision on construction quality.
Engineering supervision unit shall appoint qualified general supervision engineer and engineer in the construction site.
Supervision engineers shall be in accordance with the project supervision requirements, take supervision, inspection and parallel test form, the implementation of supervision of construction engineering.
Without the signature of the chief supervision engineer, the construction unit can not be completed acceptance; supervision units shall participate in the organization's acceptance.
Implementation of 4.11.3 engineering consulting contract
The client should be agreed to submit the consultation mission data and working conditions according to the contract; engineering consulting unit should be independent, impartial submit the consultation results, without external intervention.
Engineering consulting unit except for irresistible reasons, failed to complete the consultation tasks according to the contract, causing economic losses to the principal, shall bear the liability for breach of contract; if both parties are at fault, should be based on the actual situation, respectively by both sides according to the stipulations of the contract responsibility.

The fifth chapter of the construction contract dispute resolution
Determine the effect of the first section of construction project contract

5.1.1 engineering investigation, design by contract and its correction effect
Survey and design contracts, 5.1.1.1 Engineering (including the terms of the contract legal basis invalid)
Currently involved in engineering investigation, design contract law mainly has: "contract law" and "Bidding Law", the administrative regulations are: "construction survey design management regulations" and the "construction quality management regulations". The rules include:
"Contract law" article fifty-first: disposition of property of others without the right of disposal, upon ratification by the obligee or no disposition of the people after the conclusion of the contract, obtains the right of disposal, the validity of the contract.
"Contract law" article fifty-second: invalid contract in any of the following circumstances: (a), a party to fraud, duress, damage the interests of the state; (two) the malicious collusion, damage the interests of the state, the collective or the third person; (three) to cover legal form of non law; (four) damage the public interests of the society; (five) the violation of mandatory rules of law, administrative regulations.
"Contract law" article fifty-third: the following exculpatory provisions in a contract are invalid: (a) caused by both personal injury; (two) intentionally or through gross negligence property loss caused to the other party.
"Bidding Law" article third: the following project including project survey, design, construction, supervision and construction of major equipment, materials procurement within the territory of the people's Republic of China, must be subject to tender:......
"Bidding Law" fiftieth article: bidding agency violates the provisions of this law, divulges confidential and bidding activities and related information, or with the tenderer and bidder collusion, damage the interests of the state, social and public interests or the legitimate rights and interests of others,....... Behavior affect the results listed in the preceding paragraph, the invalid.
"Bidding Law" fifty-second article: a project subject to tender bidding to others revealed the names of potential bidders, the tender documents already obtain the number or other conditions may affect the fair competition related to tender, or leaking biaodi,....... As mentioned in the preceding paragraph to affect the results, the invalid.
"Bidding Law" fifty-third article: the collusion bidding or collude with the tenderee, bidders to offer bribes to the tenderer or members of the bid assessment committee means for successful, invalid bidding.......
"Bidding Law" fifty-fourth article: Toudang people bid in the name of others or otherwise resort to deceit, win the bid, the bid is invalid.......
"Bidding Law" fifty-fifth article: a project subject to tender, tender person in violation of the provisions of this law, to negotiate with the bidders, bid price such substantial contents of the bidding,....... Behavior affect the results listed in the preceding paragraph, the invalid.
"Bidding Law" article fifty-seventh: beyond the recommended according to law by the bid evaluation committee for the candidate of the winning bidder is determined, a project must be subject to tender according to law by the bid assessment committee after the veto to determine the winning bidder to bid at all, invalid bidding.
"Construction survey design management regulations" eighth article: investigation and design units, construction engineering survey, design business shall undertake the construction project in its scope of qualifications. Prohibit the construction engineering survey, design units beyond the scope of its qualification level or by other construction engineering survey, design units to contract in the name of the business survey, design of construction engineering. Prohibition investigation and design units, construction permits and other units or individuals in the name of the unit undertaking construction engineering survey, design business.
"Construction survey design management regulations" article thirteenth: construction engineering survey, design should be in accordance with the 'the people's Republic of China Law on Tendering and bidding. Regulations, implement the bidding.
"Construction survey design management regulations" article nineteenth: in addition to survey, design and construction of the main part of, the contract letting party written consent, the contractor may other parts of the construction engineering survey, design subcontracted to other construction projects with the corresponding qualification grade, prospecting and design units.
"Construction survey design management regulations" Twentieth article: investigation and design units, construction should not be construction will contract the surveying, design subcontract.
"Construction survey design management regulations" article twenty-first: the Contractor shall in construction engineering survey, design qualification certificate required qualification and business scope of contract construction inspection, design business.
"Construction quality management regulations" eighteenth article: in construction engineering survey, design units shall obtain the qualification certificate of corresponding grade and contract projects in accordance with the law, in its scope of qualifications. No, check investigation, design units beyond the scope of its qualification level contracts or other investigation, design units. Prohibition investigation, design units to allow other units or individuals in the name of the unit undertaking project. Investigation, design units shall not transfer to their illegal subcontracting the contract works.
Survey and design contracts, 5.1.1.2 Engineering (including the terms of the contract is invalid.)
Any of the following circumstances, shall be deemed as construction engineering survey, design contract in violation of "construction survey design management regulations", "construction quality management regulations", "Bidding Law" and "contract law" of the mandatory provisions as invalid:
(a) survey, design of people without access to survey, design qualification certificate or beyond the reconnaissance, design qualification certificate of qualification and business scope prescribed by the contract for the surveying, design business in construction project;
(two) no qualification of surveying, design people borrow a legally qualified survey, design contracts, construction engineering survey design business;
(three) according to the "Regulations" the bidding law, investigation, design contract must not tender bidding or bidding invalid;
(four) investigation, design of illegal subcontract, illegal subcontracting of construction project survey, design task;
(five) no representative or agent to the employer, the prospecting and / or the name of a design engineering investigations, design by contract, without the employer, the prospecting and / or design ratification, or has no right to represent the people, agent after the conclusion of the contract without representation, agent right;
(six) a party to fraud, coercion, project survey, design by contract, damage the interests of the state;
(seven) the malicious collusion, damage the interests of the state, the collective or the third person;
(eight) in the form of legal cover up illegal purpose;
(nine) damages social public interests;
(ten) other mandatory provisions violates laws or administrative regulations, the.
Any of the following circumstances, the corresponding clause shall be deemed as construction engineering survey, design contracts in violation of mandatory provisions "contract law" and the invalid:
(a) causing bodily injury an exemption;
(two) intentionally or through gross negligence property loss caused to the other party a disclaimer.
It should be noted that, in accordance with the "Regulations" the bidding law of engineering investigation, design contract must tender project, if the tender and bid, in accordance with the provisions of the bidding law "and" the invalid bidding, the relevant laws, regulations and does not specify the reconnaissance, design contract signed works contract is invalid, but also in accordance with "article fifty-second of the" contract law "in violation of the laws, regulations of the mandatory provisions of the invalid", should be considered invalid bidding and investigation, design contract engineering is invalid.
In addition, according to "construction survey design enterprise performance management regulations" (Ministry of construction of the people's Republic of China Decree No. ninety-third) the sixth stipulation: "the engineering survey qualifications are divided into engineering comprehensive qualification, engineering survey, engineering survey services qualification professional qualifications. Engineering survey and comprehensive qualification only grade A; engineering professional set up categories and levels according to the nature of the project and technical features; engineering services qualification regardless of level. Enterprise engineering survey and comprehensive quality, to undertake engineering business scope is not limited; make engineering professional qualification of enterprises, can take the same level of the corresponding professional engineering business; make engineering services qualification enterprises, can undertake geotechnical engineering management, engineering drilling, drilling engineering services." Therefore, engineering survey, people such as the contract within the scope of geotechnical engineering, drilling engineering, drilling engineering services work with engineering services to qualified enterprises to labor subcontracting, and subcontracting services shall be determined as.
In addition, the "Regulations" construction survey design enterprise quality management seventh: "engineering design qualification qualification integrated into engineering design, engineering design, engineering design special qualification certifications. Comprehensive quality engineering design only grade A; engineering design industry qualification and engineering design special qualification according to engineering and technical characteristics of a class nature and level. Access comprehensive quality engineering design enterprises, which undertake engineering design business scope is not limited; obtain special quality engineering design enterprises, can Yin connected with the level of the corresponding special engineering operations. Engineering design industry qualification of enterprises, can undertake the corresponding special engineering operations within the scope of the industry level, no need to separate a engineering design special qualification." No provisions, relevant design services qualification. Therefore, engineering design such as the contract within the scope of the design work of labor subcontracting to others, shall be deemed as design labor contract effective.
Invalid 5.1.1.3 engineering investigation, design by contract (including the terms of the contract) effect correction
According to the "contract law" provisions of article fifty-first, the following invalid engineering survey, design contract (including the terms of the contract) through correction and effective:
No representative or agent to the employer, the prospecting and / or the name of a design engineering investigations, design by contract, the employer, the prospecting and / or design ratification, or has no right to represent the people, after the conclusion of the contract the right agent, agent right.
"Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" article fifth: "the contractor beyond the scope licensed by its qualification grade signed a construction contract, obtain the corresponding qualification grade in the completion of construction, the parties in accordance with the request of the invalid contract processing, does not support." But the "scope applicable interpretation" Supreme People's Court on the law applicable to the construction contract disputes of construction project contract. For the prospecting, design beyond the permitted scope of business qualification registration signed project survey, design contract, obtain the corresponding qualifications in engineering survey, design task is completed, engineering survey, design by contract is validity can be corrected, legal, and regulations did not clearly defined. In the absence of laws and regulations, clearly defined circumstances, not simply the effect of presumption can be corrected, if can be corrected the effectiveness depends on the relevant laws, regulations, judicial interpretation to further clarify the.
Construction contract 5.1.2 project (including total construction contract, professional construction subcontracting, labor subcontracting) effect and its correction
Construction contract 5.1.2.1 project (including total construction contract, professional construction subcontracting, labor subcontracting) invalid
"Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" Article 1: "construction contract with one of the following circumstances, should according to the contract law article fifty-second (five) the provisions of item, invalid: (a) the Contractor fails to obtain the construction enterprise qualification or qualification level; (two) the actual construction no qualification of construction enterprises to borrow the name of qualified; (three) construction project must not tender bidding or bidding invalid." Article fourth stipulates: "the name of the actual construction contractor illegal subcontracting, illegal subcontracting construction or no qualification by construction enterprises qualified and others signed a construction contract behavior without producing. The people's court according to the general principles of the civil law the provisions of article 134th, the parties have made the collection is illegal."
It has one of the following circumstances, shall be deemed as the construction contract violating the mandatory provisions of the law:
(a) construction without obtaining the qualification certificate or contract construction beyond qualification (labor) task;
(two) the actual construction no qualification of borrowing construction with legal qualifications (labor subcontractor) name;
(three) the provisions of tender and bidding law must tender tender tender invalid or not;
(four) the construction of illegal subcontracting, illegal subcontracting of construction projects.
According to the "Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" article seventh: "with the labor service legally qualified contractor with a general contractor, subcontractor signed a labor contract, the parties to the contracts of construction project in violation of the law by requesting confirmation of invalid, does not support." Therefore, the project general contractor, construction general contractor, professional construction subcontractor will contract within the scope of labor service contracts to have the corresponding qualifications of labor subcontracting services operations, shall be deemed valid.
Lawyers can prompt clients pay attention to the following circumstances:
(a) the contract invalid situation, according to the project acceptance is qualified, will lead to different results: 1, the construction project final acceptance of construction, people can request according to the contract agreed to pay the project price; 2, the completion of the construction project not qualified, but after the restoration of qualified, repair costs borne by the contractor; 3, construction project completion acceptance unqualified, and can not be repaired, the employer may request return has been paid to the construction of artificial process models.
(two) construction project not qualified, the construction contract and bear the construction, repair, rework, and stop idling losses caused by the employer for engineering quality defects of the loss according to the degree of fault.
(three) the actual construction of construction of construction of illegal subcontracting, illegal subcontracting construction engineering benefits, lending legal qualification for lending behavior of interest, no qualification of loan quality contract benefits, by the people's court to take civil sanction measures to confiscate.
5.1.2.2 invalid construction contract (including the total construction contract, professional construction subcontracting, labor subcontracting) effect correction
According to the "Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of" the fifth Supreme People's court, the construction people beyond the permitted scope of business qualification registration signed a construction contract, obtain the corresponding qualification grade in the completion of construction, the construction contract should be regarded as effective.
5.1.3 Engineering (reconnaissance, design, construction general contracting contract) effect and its correction
5.1.3.1 Engineering (reconnaissance, design, construction) contract invalid
"Construction law" twenty-fourth article: "advocates general contracting of construction projects, construction projects in parts shall be prohibited. Construction project contract awarding units can be contracted together building engineering investigation, design, construction, equipment procurement to a project general contract unit, can also be construction project survey, design, construction, equipment purchase one or some of these tasks to a total project contracting units shall not be; but, by a contract unit fault into construction parcel out to several contractors." Article twenty-ninth stipulates: "the general contracting unit of a construction project can be part of the contracted project contracts to have appropriate qualifications subcontractors; but, in addition to the general contract agreement subcontracting, must be approved by the construction unit. Total construction contract, construction of the main structure construction project must be completed by the general contracting unit itself. The general contracting unit of a construction project in accordance with the general contracting contract be responsible to the construction unit; sub units in accordance with the sub contract be responsible to the general contractor. Contractors and subcontractors shall in respect of the Subcontract Works for the construction unit shall bear joint and several liability. The general contractor is prohibited to subcontract the project to units without appropriate qualifications. The sub contractor is forbidden to re subcontract its contracted project." "On that access project contracting market" (letter, the letter [2003]161) regulations, "the State Council on canceling the first batch of the items of administrative examination and approval decision" (of the [2002]24) to cancel the project general contracting qualification examination and approval of the administrative examination and approval, to strengthen the supervision and management of engineering general contracting work, I Department of China issued "on the cultivation and development of engineering general contract and project management enterprises guidance this year" (Building No. [2003]30). In accordance with the provisions of the "guidance", "after the project general contracting qualification certificate" abolished, engaged in project general contracting business enterprises do not set up special project general contracting qualification. With the engineering survey, design or construction general contracting enterprises can carry out project general contract project within the scope of its qualification grade certificate.
Therefore, although no special qualifications of engineering general contract, but the contract engineering general contracting business still should meet the engineering survey, design, construction general contracting qualification. The project total contract actually contains the reconnaissance, design, construction contract three kind of contract relation, in addition to Engineering Subcontract shall comply with the relevant provisions of the "construction law" the relevant investigation, design, construction.
To sum up, one of the following circumstances, should the total contract construction projects in violation of mandatory provisions that "construction law" and the invalid;
(a) the project general contractor has not obtained any (reconnaissance, design, construction general contracting qualification certificate (or beyond) survey, design, construction general contracting) qualification to contract engineering contracting business;
(two) not (reconnaissance, design, construction general contracting qualification) or has does not meet the project requirements (reconnaissance, design, construction general contracting) lower grade qualification of project general contractor borrowing is consistent with the requirements of the construction project (reconnaissance, design, construction general contracting qualification of higher grade) the project general contractor name;
(three) the provisions of tender and Bidding Law (reconnaissance, design, construction bidding tender or bid) must not invalid;
(four) the project general contractor illegal subcontracting, illegal subcontracting the contract engineering general contracting task.
Invalid 5.1.3.2 Engineering (reconnaissance, design, construction and general contracting contract effectiveness)
"Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" article fifth: "the contractor beyond the scope licensed by its qualification grade signed a construction contract, obtain the corresponding qualification grade in the completion of construction, the parties in accordance with the request of the invalid contract processing, does not support." But the "scope applicable interpretation" Supreme People's Court on the law applicable to the construction contract disputes of construction project contract. For Engineering (reconnaissance, design, construction general contractor qualification registration) beyond the permitted scope of business (project survey, design, construction) contract, in Engineering (reconnaissance, design, construction) general contracting task completion before the appropriate grade of qualification (prospecting, design, engineering, construction) effectiveness of contract whether can be corrected, legal, and regulations did not clearly defined. In the absence of laws and regulations, clearly defined circumstances, not simply the effect of presumption can be corrected, if can be corrected the effectiveness depends on the relevant laws, regulations, judicial interpretation to further clarify the.
The effectiveness of 5.1.4 engineering supervision contract and its correction
5.1.4.1 engineering supervision contract invalid
"Construction law" thirty-first stipulates: "the implementation of construction projects, commissioned by the construction unit project supervision supervision units with appropriate qualifications. Engineering supervision unit, construction unit and its entrusted shall conclude a written contract for supervision." Rule thirty-fourth: "engineering supervision units should be in the range of supervision of their qualifications, undertake engineering supervision business. Engineering supervision unit shall, according to the entrustment of the construction unit, objective, fair to carry out the task of supervision. Engineering supervision unit and the contracting unit of the project supervision and building materials, construction parts and equipment supply units shall not have subordinate relationship or other interested parties. Project supervision units shall not transfer the engineering supervision business." "Construction quality management regulations" thirty-fourth article: "engineering supervision unit shall obtain the appropriate qualification certificate according to law, and pay the engineering supervision business within the approved scope of its qualification certificate. Prohibit the construction supervision units beyond the scope of this unit qualification permission or undertake the engineering supervision business in the name of other engineering supervision unit. Prohibit the construction supervision unit to allow other units or individuals in the name of the unit to undertake engineering supervision business. Project supervision units shall not transfer the engineering supervision business."
To sum up, one of the following circumstances, shall be deemed as engineering supervision contract violating mandatory provisions "construction law" and "Regulations" construction quality management:
(a) the supervisor has not obtained the qualification certificate or beyond supervision qualification to contract engineering supervision business;
(two) no supervision qualification or a project does not meet the requirements of engineering supervision lower grade qualification of borrowing is consistent with the name of project engineering supervision requirements of the higher level professional contract engineering supervision business;
(three) the provisions of tender and bidding law must tender not not tender bidding;
(four) project supervision tasks of illegal transfer of engineering supervision contract.
Effect of correcting invalid 5.1.4.2 engineering supervision contract
"Regulations on the law applicable to Construction Contract Dispute Cases Interpretation of the Supreme People's court" article fifth: "the contractor beyond the scope licensed by its qualification grade signed a construction contract, obtain the corresponding qualification grade in the completion of construction, the request in accordance with the invalid contract processing, does not support." But the "scope applicable interpretation" Supreme People's Court on the law applicable to the construction contract disputes of construction project contract. The conclusion of engineering supervision contract engineering supervision qualification registration business license, obtain the corresponding qualification in project supervision tasks completed, effectiveness of project supervision contracts can be corrected, legal, regulations did not clearly defined. In the absence of laws and regulations, clearly defined circumstances, not simply the effect of presumption can be corrected, if can be corrected the effectiveness depends on the relevant laws, regulations, judicial interpretation to further clarify the.
Effect of 5.1.5 on the validity of contract bidding procedures
"Bidding Law" third article: "the following project including project survey, design, construction, supervision and construction of major equipment, materials procurement within the territory of the people's Republic of China, must be subject to tender: (a) large projects of infrastructure, public utilities, public relations interest, public safety; (two) all or part of the investment by state-owned funds or state financing of projects; (three) the use of loans, aid funds from international organizations or foreign government projects. The specific range and scale standards for the projects listed in the preceding paragraph, formulated by the development planning department under the State Council together with the relevant departments of the State Council, submitted to the State Council for approval. Scope of other projects subject to bidding laws or the State Council have provisions, in accordance with the provisions of." "Projects for the scope and scale of standards" (the people's Republic of China National Committee for development planning order No. third) seventh stipulates: "the provisions of article second to Article sixth of the provisions of the various construction projects, including the project survey, design, construction, supervision and construction of major equipment, materials procurement, meet one of the following standards, must be subject to tender: (a) in the estimated price of 2000000 yuan more than the construction of individual contracts; (two) the important equipment, materials procurement of goods, in the estimated price of 1000000 yuan more than the single contract; (three) survey, design, supervision and other services the purchase, in the estimated price of 500000 yuan more than the single contract; (four) a single contract price lower than the first estimate of (a), (two), (three) a standard, but the project total investment in more than 30000000 yuan."
In accordance with the "provisions of the bidding law", the project survey, design, construction, supervision must be tender without bidding a corresponding survey, design, construction, supervision contract, or in spite of the tender but invalid bidding by the employer and the contractor or not invalid mark a corresponding survey, design, construction, supervision contract shall be deemed in violation of the mandatory provisions of the law.
Processing principle of 5.1.6 contract for construction project and construction supervision contract invalid
According to the "contract law" article fifty-eighth, the avoidance of the contract, property obtained under the contract, shall be returned; not possible or necessary shall be returned, discount compensation. The party at fault shall compensate the other party for the losses, both parties are at fault, they shall bear their respective responsibilities.
The construction project contract (reconnaissance, design, construction and construction supervision contract) contract to complete the work in the nature of contract. The contract nature, could not or not easy to Hong Kong returned. Therefore, the contract of construction and construction supervision contract is invalid, can not be applied to the principle of return, should apply the discount compensation principle, according to provide building products and work to complete the task, discount compensation.
On the construction project construction contract, should according to the construction project after the completion of inspection is qualified, different treatment.
The construction contract, and construction projects after the completion of the unqualified acceptance, processing according to the following circumstances:
(a) restored construction project final acceptance, the employer requests contractor repair costs, should be supported;
(two) restored construction project after the completion of inspection is not qualified, the Contractor's request for the project price, does not support.

The third section of the construction contract legal relief

5.2.1 in construction contract the employer and the contractor of the legal rescission right
5.2.1.1 contract rescission. ("the Supreme People's court, the construction contract to comprehend and apply the judicial interpretation" of Article Eight)
The contractor has one of the following circumstances, the employer may terminate the contract of construction project;
(a) expressly or by conduct that it will not perform its main obligation of contract;
Contract law article ninety-fourth (two): before the time of performance, a party expressly or by their actions that it will not perform its main debt;
(two) is not completed within the period stipulated in the contract, and still not completed within a reasonable period of the employer's exhortation in;
Within the time limit specified in the delivery of construction project is the main obligations of the contractor. Contract law article ninety-fourth (three) rules; party delayed performance of its main obligations, a reasonable time limit after being urged not fulfilled within;
(three) completed construction project is not qualified, and refused to repair;
To obtain the qualified construction is the fundamental purpose of the employer signed a construction contract. Contract law article ninety-fourth (four): a party delays the performance of debt or other breach of contract and can not achieve the purpose of the contract;
(four) the construction engineering illegal subcontracting, illegal subcontracting;
Contract Law: no provisions of construction project contract, the relevant provisions of the use of contract. 253rd contract law stipulates: "the Contractor shall use its own equipment, technology and labor, to complete the main tasks, except otherwise agreed by the parties.
The contractor will be mainly the hired work completed by the third party, it shall be third people to complete the work results to the hirer responsible; not approved by the hirer, the hirer may rescind the contract."
5.2.1.2 the Contractor's right of rescission.
The employer is under any of the following circumstances, the contractor can not work, and fails to perform the corresponding obligations within a reasonable time limit for exhortation, the contractor may terminate the contract of construction project:
(a) fails to pay the project according to the contract;
Contract law article ninety-fourth (three) stipulated, party delayed performance of its main obligations, a reasonable time limit after being urged not fulfilled within;
(two) the main building materials, with fittings and equipment do not meet mandatory standards;
Contract law article ninety-fourth (three) stipulated, party delayed performance of its main obligations, a reasonable time limit after being urged not fulfilled within;
(three) does not fulfil a contractual obligation to assist the contract.
"Contract law" provisions of article 259th, the contracted work needs the hirer assistance, the hirer has CO and obligations.
The ordering party does not fulfill the contract obligations to help the contracted work cannot be completed, the contractor may urge the hirer obligation within a reasonable time limit, and may extend the term of its performance; the hirer fails to perform within the time limit, the contractor may rescind the contract.
The principal and the investigation of 5.2.2 construction survey of the contract legal relief right
5.2.2.1 client termination.
(a): the legal basis and the construction contract rescission of the same, mainly according to contract law article ninety-fourth and article two hundred and fifty-three.
(two) the main duty of investigation;
Submit the survey documents is the basic obligation of survey and design. The survey documents generally includes the measurement data, in the project site geological data and hydrological data.
(three) to obtain the qualified survey, design document is the client to sign the construction survey of contract according to the purpose.
5.2.2.2 investigation of the rescission right
(a): the same legal basis and construction contract legal relief, mainly according to contract law article ninety-fourth and article two hundred and fifty-nine.
(two) the principal obligation:
Submit the relevant survey and basic materials and documents is the principal obligation, survey based data including feasibility report, engineering survey point, content, and technical requirements and drawings etc.. The basic data for the design of engineering site reports survey data as well as the raw material (or approved resources report), fuel, water, electricity, transportation and other aspects of the protocol file, need to go through the technical data of scientific research have.
(three) the principal cooperative obligation:
The investigation personnel admission work, provide necessary working and living conditions for the investigation, in order to guarantee the normal work.
The principal and the design of 5.2.3 in construction project contract legal relief right
5.2.3.1 client termination.
(a): with the legal basis of the construction contract legal relief, mainly according to contract law article ninety-fourth and article two hundred and fifty-three
(two) the design of main obligations:
Submit the design is a basic obligation design people. Design documents include the construction design drawings, material and equipment list and project budget.
(three) to obtain the qualified design documents is the fundamental goal of the client signed design contract for construction project.
The 5.2.3.2 design of the rescission right.
(a): with the legal basis of the construction contract legal relief, mainly according to contract law article ninety-fourth and article two hundred and fifty-nine
(two) the principal obligation:
Submit the related basic data for design and document is the trustee's duty, the basic data for the design of engineering site reports survey data as well as the raw material (or approved resources report), fuel, water, electricity, transportation and other aspects of the protocol file, need to go through the technical data of scientific research to.
(three) the principal cooperative obligation:
In the design of personnel entry work, provide necessary working and living conditions for the designer, in order to guarantee the normal work.
Processing principle of 5.2.4 construction project after the termination of the contract
The legal consequences of 5.2.4.1 contract legal relief
According to the provisions of article ninety-seventh of the contract law, rescission, termination is not performed, perform; has fulfilled, according to the nature of the contract and performance, the parties may seek restitution or take other remedial measures, and shall have the right to claim compensation for losses. According to the contract attribute could not or not easy to restore, need not restitution. On the construction project contract (reconnaissance, design, construction contract) property, the construction contract is not possible or not easy to restore.
"Understanding and application of" the Supreme People's court construction contract the judicial interpretation of the second and the three rules: the construction contract, construction works have been completed qualified, the employer shall pay the price in accordance with the agreed project corresponding. The completed construction project is not qualified, restored construction project final acceptance, the Contractor shall have the right to request payment of project cost. The employer requests contractor repair costs, should be supported; construction project after the repair of the completion acceptance unqualified, shall not have the right to claim payment of the contract.
According to the design of the construction project contract (a) (model version) GF-2000-0209, during performance of the contract, the employer requests to terminate the contract, design does not begin to design the job, not to return the employer paid the deposit; have started design work, the employer should be based on the actual design work people, less than half, according to half pay the design stage cost; more than half, according to the stage of design fees paid.
Design of design data and documentation omission or error is responsible for the revision or supplement.
According to the construction engineering contract (a) (model version) GF-2000-0203, during the execution of the contract, the engineering construction and the termination of the contract or the employer demands the termination of the contract, the surveyor is not to survey the work, not to return the deposit paid; have to survey the work; work completed within 50%, the employer shall pay the survey fee budget amount of 50% to the prospecting; work completed more than 50% when, should pay the survey fee budget amount of 100% to the surveyor.
The survey results of data quality is not qualified, can not meet the technical requirements, the rework investigation costs borne by the surveyor.
5.2.4.2 after termination of the contract damages
The general principles of the civil law 111st stipulation: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreed conditions, the other party is entitled to perform or take remedial measures, and shall have the right to claim compensation for losses. At the same time, according to the provisions of the general principles of the civil law article 115th, alteration or termination of a contract, the parties does not affect the right of claim for compensation. Therefore, because of a breach of the cause of termination of the contract, the breaching party shall indemnify the losses caused to the other party.
The principal and the supervisor 5.2.5 construction engineering supervision contract contract and after the termination of the treatment principles
The relationship between the people and the engineering supervision in nature is a contract relationship. According to the "contract law" provisions of article 410th, the client or supervisor can terminate the contract. To the other party as a result of cancelling the contract caused by the loss, in addition to not attributable to the parties' origin, shall compensate for the losses.
The commission contract contract attribute could not or not easy to restore. The client terminates the contract, the principal part of the trustee benefit supervision reward has been performed on the outside, not attributable to the agent case, due to release supervision remuneration contract has been caused by the reduction of liability.
The termination of the contract, but in no responsibility for client's case, if the client they could not handle the affairs personally, but was unable to find suitable trustee on his behalf the entrusted affairs and occurrence of damages, the trustee shall bear the liability of compensation.
5.2.6 lawyer in favor of cancelling the contract shall notify the clients pay attention to the following matters:
(a) to exercise the cancellation right shall be written notice to the other party;
(two) does not exercise the right in legal or within the agreed period, the right to eliminate;
(three) no statutory or contractual rescission of the exercise period, urged by the other party within a reasonable time limit fails to do so, the right to eliminate;
(four) upon termination of the contract, shall not affect the validity of contract provisions of the clearing and settlement.
(five) lawyers should prompt clients at the termination of the contract, should also perform the obligations of notification, assistance, confidentiality obligations after contract.

Exercise third priority

The exercise of the priority of claim is the legal basis for the "contract law" article 286th and the Supreme People's court
"On the priority of construction project cost problem" (France - [2002]16.)
The formation of 5.3.1 project cost priority
According to the "contract law" provisions, the contractor agreed to the construction contract obligation, the employer fails to pay the price in accordance with the contract, the contractor may demand that the employer to pay the price within a reasonable period of time. The employer fails to pay within the time limit, contractor's priority of payment shall be formed, namely except in accordance with the construction project, is unfit for discount or auction, the contractor may consult with the employer to convert the project into money, or apply to the people's court to auction the project according to law. The construction proceeds shall be discounted or auction price first refusal.
The lawyers are called on the disposition of the priority of understanding to note: the contractor to perform the contract obligations is the main project has been completed and has passed the quality acceptance, and the contractor has to contract in the acceptance within the agreed time limit by the employer to the completion of the settlement of books and all the completion data.
5.3.2 exercise project price priority and time range of claim
According to the judicial interpretation of the provisions, have the priority of construction project payment include the contractor of construction projects shall pay the staff remuneration, materials, real payments, not including the Contractor by the employer loss by default. Therefore, the scope of the priority claim can be understood as the total engineering cost in addition to the liability for breach of contract beyond price.
The construction contractor to the exercise of the right of priority for a period of six months, counting from the date of completion of the construction project or a construction project contract completion date. Over a six month period, the project priority of payment usually lose.
5.3.3 exercise project priority of payment way
A: the discount. The contractor and the employer negotiation project discount sale, contractor's project cost from the discount sale section in priority. This discount means also should include the contractor and the employer's voluntary consultation will part or all of the works a discount to the contractor all, including discount pricing method is according to the project cost reduction and construction area, or the market price discount from the construction area.
Two: the auction. The contractor to perform the obligations agreed after the construction contract, the employer is not to pay the contract price, the contractor may directly, also can be in not with the employer after consultation discount, apply to the people's court to auction the project according to law, the people require the contractor to auction, in priority. The one sector, the law itself is not the provisions according to law court auction, operating in practice can be the first to the Executive Court apply, such as executive need publicity or tribunal to decide, should be carried out according to the requirements of the court.
The law stipulates the nature of the construction project should not be discounted, auction, mainly refers to construction projects for public use of national defense, military has important influence on national life building, can not be discounted or auction, but lawyers by the administrative authorities to coordinate the resolution.
The relationship between 5.3.4 priority of claim and as a developer of the employer's bank mortgage loans and the pre-sale housing
According to the judicial interpretation of the provisions, building contractor contractor project priority of payment than the bank mortgage and other debt. Whether the mortgage on the front or rear, project cost is prior to the mortgage repayment.
But consumers pay all or most of the money to buy commercial housing, commercial housing enjoy the contractor on the project priority of payment may not be against the buyer. Most of the money has been paid refers to pay 50% of the total 1629 above.
5.3.5 underwritten to exercise works affected claim priority
According to the principle of effective treatment is underwritten "provisions on Several Issues concerning the trial of construction contract dispute cases the law applicable to the interpretation of the Supreme People's court" article sixth. The provisions of the construction of priority for repayment will bring the negative influence.
The essence of mat endowment money belonging to the construction cost of the category, so mat endowment money should belong to the scope of priority, should also be repaid within 6 months after completion. However, in practice, mat endowment money in for completion within 6 months after the often difficult to repay, because some of the contract itself agreed mat endowment money since 6 months after completion of began to pay, so lawyers provide legal services should be in the party: in accordance with the "contract law" article 286th and the Supreme People's Court on priority explain the principle, according to effective since underwritten to handle, to exercise the priority must be within 6 months after the completion of the project, the exercise or contractual completion date, otherwise not underwritten to exercise the priority.
Has been underwritten by effective treatment principle, and judicial interpretations are not under the premise of the priority corresponding provisions, so aroused the agreed deadline is too long or the agreement is not clear, have a serious negative impact will, the priority is difficult to operate. Because legitimacy is not clear underwritten, or underwritten not by effective treatment, when the manager can ask the employer to pay the contract price at any time, without the 6 months of the time limit, the employer fails to pay when the mat endowment money, through the preservation means litigation, seized the Department for project, to ensure that the Contractor's priority the right to indemnification. Although this is a need for further study of specific legal issues, the Supreme Court agreed to be clearly resolved in the particular way in the future practice, but the lawyer in the corresponding laws still should make corresponding countermeasures, a sharp, when prompted to contractors underwritten return time can not be completed six months later; two, it shall be regarded the case timely exercise of the priority of claim.

Type fourth section of construction project contract dispute

5.4.1 construction project bidding common disputes
5.4.1.1 successful results invalid dispute
5.4.1.2 bidder refuses to sign the contract disputes
Investigation, design 5.4.2 construction project contract dispute
The 5.4.2.1 survey, design quality disputes
The 5.4.2.2 survey, design period disputes
The 5.4.2.3 survey, design change dispute
5.4.3 construction contract dispute
5.4.3.1 construction the main contract disputes
5.4.3.1.1 due to the Contractor's qualification is not enough lead to disputes
(a) the construction unit undocumented, unlicensed contractors, the contract is invalid (general agricultural construction project except).
(two) the construction unit to borrow, fraudulent use, misappropriation of business license, qualification certificate of project contracting, the contract is invalid.
(three) the construction units beyond the scope of business, signed the qualification grade project contracting contract is invalid.
(four) non qualified construction team affiliated construction company, a construction company a project contracting foreign projects, there are two cases:
1, in the name of the affiliated units of the signing of the contract, the contract is invalid;
2, to be affiliated to contract in the name of, have two kinds of cases: A, the construction company contracted projects, the project to team building construction, the contract effective. B, building its own team of engineering contract, signed a contract in the name of the construction company, the contract invalid.
(five) foreign contracted engineering branch construction company, the contract is invalid.
(six) the general agricultural building individual team building, individual partnership building team construction, in accordance with the relevant provisions of, that the validity.
(seven) two construction unit joint contracting project, should according to the scope of business contracting unit with the lower level of qualification, otherwise the contract null and void.
5.4.3.1.2 because of unauthorized agency and the agency by estoppel leads to disputes
(a) the internal mechanism of the construction unit foreign contract engineering contract effectiveness.
There are two cases:
The signing of the contract 1, the corporate name, legal person knowingly do not oppose, if no other illegal circumstances, can be found valid contract; internal mechanism without prior authorization and no later ratification of the contract, to unqualified subject is invalid.
2, the internal mechanism to contract in the name, legal person knowingly not opposed and ready to perform or have begun to perform the contract, the contract can be identified effectively; in other cases (legal person does not know, opposition, performance does not prepare) that the contract is null and void; the parties to the contract without objection, can be treated as a valid contract.
(two) the provisional institutions of foreign contract engineering all the same effect
Review the temporary agency is established administrative official documents, some institutions, offices, responsible organization, and sign the contract within the scope of authority, have the above conditions and meet other conditions, that the contract effective.
(three) the preparation unit of foreign contract engineering contract effectiveness
Review the preparation unit whether legally approved registration, registered in accordance with the law, that the foreign contract effectively, in accordance with the law without registration or registration applications are according to the actual situation can be confirmed.
5.4.3.1.3 for union contract led to disputes
The twenty-seventh article of architecture law husband: "large construction projects or complex construction, by two or more contracting unit joint contracting. Parties contract to perform the contract shall bear joint and several liability. For joint contracting more than two units with different levels of qualification shall be in accordance with the contract, the lower level of qualification units of the business scope of the project, "the dispute to the employer shall agree to all claims associated units according to the contract agreement; the affiliated units according to the coalition agreement agreed to bear their respective responsibilities.
5.4.3.1.4 for "anchored" problem arising from the dispute
5.4.3.2. construction contract disputes
The 5.4.3.2.1 construction contract project payment arrears disputes
The project agreement clear, project budget, the parties have the approval, project payment disputes the employer fails to pay the. The facts are clear, simple, easy action.
The 5.4.3.2.2 construction contract project payment settlement of disputes
(a) of the invalid contract price settlement
In order to ensure the implementation of city planning, to standardize the construction market order, ensuring the quality and safety of construction projects, the relevant laws, administrative regulations, made a series of mandatory or prohibitive provisions. The main contents include: construction projects must be approved by the Department of planning, planning and management department issued by the construction project planning permit construction land planning permits, construction, is issued by the administrative department of construction permits; the construction enterprises must have the corresponding qualifications contract engineering statutory; strictly prohibited construction enterprises beyond the license qualification grade the scope of business enterprise or by any other form of the name of another construction enterprise contract projects; prohibit the construction enterprises in any form to allow other units or individuals to use the certificate, the business license of the enterprise, to undertake a project in the name of the enterprise. In judicial practice, a violation of the provisions of the contract will be confirmed as correct. Construction contract is recognized as invalid, if the construction project final acceptance, the employer may require the contractor to bear the repair costs, repair is still unqualified acceptance, the Contractor shall not be entitled to the project cost.
(two) on the construction of Party construction party breach as settlement payment project defense project price
In judicial practice, even in the contract on the construction cost explicitly agreed circumstances, the construction side is usually in the construction contract to protest the project defense. For the following main problems encountered in practice, should distinguish the different situation to deal with:
The construction of a party to the engineering quality as the settlement payment project defense project price. This problem exists in construction engineering settlement. The main problem in practice: one is about the construction of party can claim the right to plea of simultaneous performance problems, to project to project quality, should carefully review the contract. Under normal circumstances, the two sides in the contract is agreed by the image of progress pull fu works, the balance in the project completion settlement together with square, and agreed warranty engineering. But the quality of warranty provisions on the payment is not restricted to the payment agreement. Visible, this kind of contract, payment and engineering for the project, not at the same time to fulfill the warranty about, but agreed to have to order. Therefore, the applicable conditions do not conform to the contract performance counterplea, construction party shall pay the project payment and bear the liability for breach of contract. As for the engineering quality problems, generally use the contract by the construction party repair, repair and assume the responsibilities to solve other liability for breach of contract. The two is the defense construction about the quality, should be used as a counterclaim or refute. This problem, directly related to the construction request can get support. If only to the engineering quality problems that refused to pay the project, shall be deemed to be contradicted. Therefore, in the usual contract situation, the construction side of the counter claim is not clear, not specific, for only expression due to quality problems, do not agree to pay by the project, the construction side requested amount of defense is not supported. Conversely, if advocated the building of party for the counterclaim, counterclaim may cause the program start, and according to the evidence, cross examination, asserting the fact situation, judge. Three is the construction without approval soon after the project put into use, processing and quality problems on the grounds of non payment of Engineering section. We should distinguish the quality problem for the general problem, or foundation, structural problems. There is general quality issues to engineering construction project is not supported by the defense. In contrast, for the foundation, structural problems, such as it is the responsibility of the party construction, the construction side should be made clear that the counterclaim, claims to be supported.
The construction of a party to the project is not completed as the settlement payment project defense project price. In engineering construction, due to one or both of the parties unable to fulfill the contract, the works in a "half son" or "unfinished" state, resulting in the completed project settlement of disputes. The construction project has been completed qualified, in accordance with the payment of the corresponding cost of Engineering contract. The unqualified, according to the processing project price settlement of void contract the principle. As a result of a breach of the contract and the termination of the contract, in accordance with the contract damages from the defaulting party therefore causes losses to the other party. For the agreed price unknown contract, according to the valuation methods promulgated by the administrative departments of construction project cost or valuation standard settlement.
The construction of a party to the construction side overdue completion as the settlement payment project defense project price. Engineering settlement dispute quite a lot of time over the problem relates to the engineering as agreed in the contract period. As a result of the construction side fails to construction requirement timely inspection of concealed works, because the construction side construction of power shortage make progress slowly, because the causes of rework quality construction of Party construction, due to the construction of party is not out in time to pay project, design changes and other reasons the project stopped, installation and increase the engineering quantity etc.. The construction of party only to the construction side overdue completion refusal works, the claim could not be supported. So the lawyer should help the construction side to find out the facts, to determine the extended engineering case is in accordance with the provisions of the contract or the law. To meet the time limit delay conditions, according to the time limit stipulated in the contract shall be extended period calculated period, extended period of the contract. Do not comply with the time limit delay and beyond a reasonable time limit delay, the Contractor shall bear the corresponding liability.
The agreement on the construction side underwritten construction project price settlement. Such disputes, the construction side often to the construction side not agreed to advance the project payment default payment requirements engineering. The underwritten clauses are effective treatment, and can not affect the project determination and payment, because the construction side to advance the project not only constitutes a breach of contract, the construction side as a justification to engineering is not set up.
The construction of a party to the construction side claim exceeded the limitation of action as the settlement payment project defense project price. Engineering construction contract because of longer duration, perform frequently occur in the repair, extended time limit for a project, consultation accounts disagree and so on, leading to the project completion after a long period of time the project failed to pay. The construction will make the unilateral statement to the construction side, the construction side will not be reviewed and signed, the unilateral statement and effect according to the entry into force of the contract agreed deadline, the limitation of action that occurs when the. Construction of the main often after repeated negotiations with the construction side and ask for the project, which can be regarded as a limitation of actions. Even if there is no unilateral statement effective time limit agreed in the contract, according to the "Interim Measures" construction engineering convulsion settlement shall reasonably determine a deadline for the project settlement, after the expiration of the term of limitation of action that occurs when the.
(three) of the contract price agreed unclear project price settlement
The price of the agreement is not clear because of engineering design has not yet been completed, not quantity is determined according to the construction drawings etc.. The cases were showed in the contract: the engineering cost accounts generally agreed to by the provincial, city, implementation of the relevant documents; according to the different ways of general contracting, contract for the construction drawing budget and visa, the implementation of national engineering quota, project budgetary estimate, construction contract plus coefficient; in addition, there is no written contract, both sides on the basis of and method of engineering cost accounts for each sticks to his argument. According to the "contract law" sixty-first, spirit of the 62 requirements, both parties can negotiate supplementary construction and final accounts in the proceedings of the convention. Negotiation fails, can be handled according to the following methods:
The contract between the valuation method and accounting of the cost engineering, should from the agreement. The provisions of the agreement engineering cost accounts for implementation of the provincial, city of the relevant documents, such as agreed in the annual quota file clear, on the basis of the file is determined; no clear agreement, according to the quota file to determine. According to the contract agreed by the construction drawing budget and visa, project budgetary estimate, working drawing budget plus factor contract, if the file construction drawings, budgetary estimation of the project have been completed, and signed by the parties, should be used as the basis of project cost accounting. For the contract is not on the project cost for the specific agreement, or no written contract, both sides of the engineering cost determination and know not, that also works should be based on the local construction administrative departments formulate pricing documents.
For the both parties valuation method cost and final project to form a consensus, or in accordance with the above method to determine the method of valuation, the parties should be the project cost accounting. Due to the problem of strong professional can't check, can apply for to entrust a specialized department of audit, and the cross examination after the examination to determine the construction cost.
(four) the settlement of construction claim priority project price
"Contract law" article 286th and the Supreme Court judicial interpretation of the applicable conditions and scope, limitation of rights, priority right, retroactive effect, strengthening the construction of the legitimate rights and interests of the priority of the relief and legal protection. Urge the reasonable period of time. In general, may be required to pay the relevant section of engineering time reference the national Ministry of construction, administration of industry and Commerce jointly promulgated the construction contract model text, identified as 1 months or so is appropriate. But if the two sides reach an agreement on the engineering allowance money, the contractor may not through the exhortation and has the right to receive repayment exercise discount. If the employer malicious transfer ownership of buildings, the contractor may apply to the people's court to auction at any time.
(about five) between employer and contractor on the same project signed several different versions of the contract project price settlement
If several different versions of the contract have a is the record contract, according to the provisions of the Supreme People's court "about the law applicable to the construction contract dispute case explanation" article twenty-first, for the record contract for settlement. Otherwise, should according to the time sequence of the signing of the contract, after the signing of the contract for the settlement.
The 5.4.3.3 construction contract disputes
5.4.3.3.1 general construction quality disputes
Due to the contractor of the project quality does not meet the prescribed by staff, the Contractor shall be responsible for free repair or rework, resulting in overdue delivery of the project, shall pay the overdue penalty. In the contract, the provisions of the warranty period, the quality problems of the contractor responsible engineering, responsible for free repair.
Hidden works acceptance after approval by both parties, the contractor continue the construction and found quality problems caused by loss of concealed work, the employer shall bear the corresponding liability; if the design units and supervision units also have fault, according to the size of the fault shall bear their respective responsibilities.
5.4.3.3.2 works without dispute the quality acceptance into use
"Contract law" article 279th, "construction law" article sixty-first, "construction quality management regulations" stipulates: "article twenty-ninth works without acceptance or unqualified acceptance, not to use", the State Council issued in August 8, 1983 "construction and installation engineering Cheng Chengbao contract regulations" thirteenth article second paragraph third stipulates: "the project without approval, the employer in advance or unauthorized use, resulting in quality or other issues, the employer shall bear the responsibility." According to the above provisions, the project without approval, is put into use, its responsibility in the contractor, the Contractor shall not be approved, appear quality problem of the employer shall bear. But without a completed acceptance, the employer to advance the use of buildings, after using due to the existence of defects of building safety quality foundation and the main structure of the project, the Contractor shall bear civil liability. The employer can prove that the project quality does not meet the quality standard, is the construction of Jerry building, the use of substandard materials, or not in accordance with the design drawings, technical standards for construction cause, the construction shall bear civil liability. For other rectification or exposure of the quality problem, the construction shall not bear civil liability, rework and repair fees shall be borne by the employer.
Alteration and termination of the 5.4.3.4 construction contract disputes
5.4.4 the contract for construction projects of common disputes
5.4.4.1 because of quality problems and disputes
According to the "construction law" and the Ministry of construction "construction enterprise qualification regulations" on the construction enterprise qualification requirements, construction enterprises engaged in construction activities shall have the corresponding qualifications, engaged in construction activities in its scope of qualifications. Construction enterprises are prohibited from beyond the scope licensed by its qualification grade contract works. Prohibit the construction enterprise no matter or does not have the corresponding qualifications enterprise subcontracting engineering.
5.4.4.2 for the scope is not clear and the dispute
Main reasons causing the performance range is unclear sub contract terms are not standardized, not specific. Quality package contract depends entirely on the contractors and subcontractors and the level of legal consciousness. If the contractor, subcontractors and the level of legal awareness is low or the difference is large, content of contract is set is not complete, rights and obligations are not equilibrium. Therefore, in concluding a contract, should be strictly in accordance with the "contract model texts" in terms of contract.
5.4.4.3 for subcontract disputes arising
Construction contracts prohibited by the law. "Contract law" Article 272, "construction law" 28 article "," construction quality management regulations are regulations prohibit subcontracting engineering 25. Construction enterprises in the subcontract project benefits the court will rule on the "Application of law to the Supreme People's Court on the construction contract dispute cases the interpretation of" 4, "the provisions of Article 134 general principles of the civil law" confiscate the illegal income by the parties.
5.4.5 construction engineering labor contract dispute
The 5.4.5.1 general contracting enterprise or specialized construction enterprises and does not have the corresponding qualifications enterprises signed labor contract
According to the "regulations applicable law the Supreme People's court hearing construction contract dispute cases the interpretation of" first and "contract law" wait to be recognized as invalid contract. Processing the avoidance of the contract: if the labor subcontracting enterprises to provide services engineering qualification, labor subcontracting enterprises based on the "Application of law to the Supreme People's Court on the construction contract dispute cases the interpretation of" the provisions of article second, request services shall have legal support. If only because the labor subcontracting enterprises to provide services due to substandard quality engineering is not qualified, labor subcontracting enterprises request the subcontractor labor price stipulated in the contract, the lack of legal support, and, also should undertake the corresponding loss.
The essence of nominal 5.4.5.2 general contracting enterprises or professional contracting enterprises and labor subcontracting enterprises in the labor contract signed on the engineering subcontract.
This contract will be based on objective facts and the actual content of the construction contract in specific circumstances, and the balance between the two parties, to identify the nature of contractual relationship between the parties. Some of them may be identified as the Engineering Subcontract, then according to the engineering sub contract rights and obligations, to re confirm the rights and obligations of both parties.
Nominal and services 5.4.5.3 engineering subcontracting enterprises to labor contract the essence package enterprises signed on the contract engineering subcontracting.
This contract will be invalid. Subcontracting enterprises such behavior made profits will be based on the provisions of the court "Application of law to the Supreme People's Court on the construction contract dispute cases the interpretation of" the fourth collection, or by the construction administrative organs to confiscate punishment the same.
5.4.6 construction engineering supervision contract dispute
5.4.6.1 supervision work content disputes
5.4.6.2 supervision defect disputes

Treatment of fifth section of construction project contract dispute

5.5.1 mediation
The construction project contract disputes before entering the litigation procedure, the two parties can choose or mediation in the relevant departments under the auspices of, in order to achieve fast, efficient, low cost to solve disputes.
Preparation of 5.5.1.1 mediation
(a) in advance according to the specific circumstances of the case, planning for mediation of time, scope, participants and issues the order.
(two) the mediation in advance to seek support to report to the competent government departments, and to mediate in government departments under the chair.
(three) the mediation must prepare relevant materials, for display or access.
5.5.1.2 mediation scope
In the process of mediation, can choose a package solution on both sides are controversial issues, but also on the part of the first agreement disputes, the disputes for solution.
5.5.1.3 mediation content
The parties to the dispute are fully illustrated, according to law, contract, trading habits, based on equality, mutual understanding of the principles of seeking conciliation scheme.
In addition to the mediation of matters has the dispute, both sides should pay attention to matters has not yet occurred, but the future may dispute, strive to advance consensus, to avoid disputes:
(a) to provide legal services for the Contractor's lawyer in the mediation process, in addition, the total project payment time and manner, but also should pay attention to whether the contractor in construction period, quality, safety and civilized construction aspect to have the event of default, to the employer on the schedule, quality, safety and civilized construction and other matters to confirm that no default or in the event of default relief, reduce the liability for breach of contract.
(two) to provide legal service for the employer's lawyer in the mediation process, in addition to cost, schedule, quality, safety and civilized construction matters, but also should pay attention to the finished project and program, engineering materials to the scope, time, and strive to clear the contractor over time and scope of the finished project and project data, and the agreement the Contractor fails to timely transfer the liability for breach of contract.
5.5.1.4 mediation results
(a) in the mediation process, the matters that should be promptly agreed to manufacture into the meeting minutes, supplementary agreements and other written documents, make both sides signed or affixed with legal person's cachet or contract seal.
(two) if the two sides cannot distribute the rights and obligations of the dispute agree, but also to affirm the fact in the process of construction, with a fixed fact, facilitate the continued negotiation or litigation.
5.5.2 proceedings
The two parties of the contract can be in the event of a dispute, choose to file a lawsuit to the people's court.
Determine the 5.5.2.1 qualification of subject of litigation
Lawyers should be studied case information, clear legal relations, to determine the proper subject of litigation.
(a) signed the Department of construction unit functions do not have the qualifications of a legal person or agency construction contracts, disputes, should be the construction unit for the subject of litigation, to sue and be sued.
(two) the branch of construction enterprises (branch, engineering department, project, project manager, team building and so on) signed construction contract, disputes, generally by the branch as the main proceedings, such as the branch does not have independent property, it should be appended to the construction enterprises into joint action people.
(three) use business hot photos, qualification certificate and other's name signed construction contract, litigation, by borrowing and lending for the common litigants, Sue and be sued.
(four) the construction project contract or common joint contract, disputes, should be the joint contractors co litigants, Sue and be sued; such as common contractor to form a joint venture, and has the qualifications of a legal person, the joint venture is the subject of litigation. Legal person, more than two other economic organizations or individuals share common interests and cooperation projects of cooperation projects, cooperation with the party as a result of engineering contractor signed construction contract disputes, other cooperation in the construction of party should be listed as the original, the defendant together.
(five) the total package of measures of construction engineering, because of the Subcontract Works disputes, the general contractor and subcontractors should be regarded as the common litigants, Sue and be sued; if the subcontractor sued the general contractor, the sub contract subject as the subject of litigation, is listed the construction unit third, depending on the specific details of a case and decide.
(six) relates to individual construction team or individual partnership building team signed construction contract, disputes, the general should be based on individual construction team or individual partnership team building as the subject of litigation.
(seven) the construction enterprise management relations in its own name or in the name of the affiliated enterprise signed the contract, should be generally to call operator and affiliated units for the common litigants, Sue and be sued (Supreme Court opinions "Civil Procedure Law" the forty-third stipulation: "the individual industrial and commercial households, individual partnership or private enterprises the titular collective enterprise and the collective enterprise name is engaged in production and business activities, in the proceedings, the individual industrial and commercial households, individual partnership or private enterprise and its affiliated collective enterprises as the common litigants") Construction of other construction enterprises link, and link it to be revised industry construction signed in the name of the construction contract, and construction enterprises has been linked not to prosecute, the construction can be used as the plaintiff, which will not be linked to the construction enterprises as a co plaintiff.
(eight) the subcontracted the contract dispute, if the employer's prosecution, shall be listed in the subcontractor and the subcontractor as a joint defendant; if disputes arise because of subcontract, to the subcontractor and subcontracted subject as the lawsuit, the construction units listed third people; multilevel subcontract, except the litigants, should the other parties listed third people.
(nine) in the name of building or temporary organization construction contracts, litigation, if the unit has been legally approved the establishment, by the litigant to sue and be sued; if the unit is only temporary agencies, not for formal approval procedures, or the authority revoked, or open the unit set up by the organizations to Sue and be sued.
(ten) the construction enterprise contract management, disputes, if the enterprise is a corporate organization, it is the enterprise as the subject of litigation, to sue and be sued; if the enterprise is not a legal entity, listed the employer and contractor for the common person, to participate in the proceedings.
(eleven) because of arrears disputes, the contractor of the construction project contract subcontract by the Contractor against the contractor, the employer may not be listed as a party to the case; the Contractor proposes to the employer as the third person, and the right. But the employer of the contractor and the obligation of the employer, can be classified as third people, according to the different legal relations between parties to bear the corresponding legal responsibility; such as contracts agreed by the employer, which belongs to the contract, should be directly listed the employer for the defendant.
(twelve) because of the engineering quality disputes, the developer only prosecute contractors, in the review identified subcontracting, should additional actual construction as the defendant, the actual construction of project quality and the Contractor shall bear joint and several liability.
Determination of 5.5.2.2 of jurisdiction
According to the legal provisions and judicial interpretation, construction and the people's Court of the place where the two sides agreed in the contract or other competent people's court has the right of jurisdiction.
Determine the 5.5.2.3 lawsuit request
The claim should be comprehensively covers the legal rights of the plaintiff.
The agent due to the Contractor's project dispute lawsuit, such as prosecution of fashion does not exceed six months from the date of completion of the project or contract completion date, shall request that the cost of the construction project priority of claim in litigation request.
The 5.5.2.4 property preservation
Lawyers should find each other for the seizure of property or frozen bank accounts, timely adopt property preservation before litigation or litigation preservation measures.
5.5.2.5 evidence submitted
Litigation related parties should the time limit for adducing evidence in court appointed, the timely submission of evidence, the judicial appraisal application. An identification of the party should also be all identification documents within the specified time period. If any evidence is indeed difficult, should apply for extension of time limit for adducing evidence within the specified time period.
The 5.5.2.6 counterclaim
The claim of the accused not only deny and refuse, but that there are other reasons can be annexed or cancellation, the defendant lawyer shall promptly countersued within the specified time period.
The 5.5.2.7 trial requirements
Lawyers should seriously study the action data, lists written agency outline, written examination opinions ready for other evidence, attend the trial, published in the agency comments, and trial procedure is completed in a timely manner to the court to submit the written word agent.
The 5.5.3 arbitration
The two sides agreed effective arbitration conditions in the contract, both parties in the dispute to the arbitration agency agreement, choose to apply for arbitration.
The lawyer shall refer to arbitration rules promulgated the stipulated arbitration institutions, and strictly in accordance with the provisions of the arbitration rules of the arbitration proceedings.
The remaining issues can refer to 5.5.2 litigation section.

The sixth section relates to construction project cost, quality, time limit for a project disputes in judicial identification

Judicial identification of 5.6.1 construction project cost
5.6.1.1 valuation appraisal application
(a) according to the provisions of the rules of evidence, the burden of proof is on one side, the project cost shall claim valuation appraisal application at the expiration of the time limit for adducing evidence.
(two) advocated the project price party has evidence to prove that the project cost has been confirmation or contract project cost to determine the agreed conditions have been accomplished without identification application. We take exception to the application of the price.
(three) both sides agreed to a fixed price settlement of project cost shall not delegate identification.
(four) the cost institutions qualified approval of the engineering cost and has been confirmed by both parties, the other party shall not re apply for the identification of financial audit is to.
5.6.1.2 audit expenses prepaid
The judicial authentication fees, generally by the party advance for identification. Both the identification requirements of the half, both sides in advance.
The selected 5.6.1.3 valuation unit
Consultation between the two sides selected identification unit, into the business not commissioned by the people's court. But the Commission identified single must have engineering cost consulting enterprise qualification, engineering cost consulting enterprise qualification can be engaged in various types of project cost identification, the identification of the engineering cost consultation enterprises can only thing B qualification send price in 50000000 yuan of the following.
5.6.1.4 on valuation identification draft objection
According to the valuation appraisal process, appraisal unit after verification of engineering quantity and both sides, or to calculate the engineering quantity, issued to the client identification. Identification of the first draft from the following aspects of Lawyers Association and the review, objection:
(a) qualification and qualification audit qualification units and personnel;
(two) engineering quantity calculation method, cost, rates apply basis;
(three) the cost of materials, machinery costs, labor costs of price adjustment method and basis for the;
(four) approved cost composition basis.
Quality certificate 5.6.1.5 on valuation appraisal report
The lawyer can from the following several aspects of judicial appraisal report quality certificate and dissenting opinions:
(a) valuation appraisal process is legitimate;
(two) range checking identification;
(three) identification, valuation method and procedures for;
(four) amount of engineering construction drawing budget and difference as built drawing engineering quantity and adjusted according to.
When necessary, in accordance with the provisions of article sixty-first of the rules of evidence, hire cost consulting professional qualifications of the staff to assist the quality certificate, a description of the specific problems.
5.6.1.6 to apply for re identification
The following situation according to the Supreme People's court "several regulations about the civil action evidence" the provisions of article twenty-eight, twenty-seventh identification report to apply for re identification:
(a) appraisal institutions or the identification of personnel do not have relevant qualifications;
(two) the identification procedure serious illegal;
(three) the appraisal conclusion obviously lack of evidence;
(four) through cross examination can not be identified as any other evidence on the use of;
(five) the identification conclusion party to entrust the relevant departments to make, the other party has evidence to refute, overthrow.
Conclusions on the identification of defects, which can be solved by the supplementary identification, re examination or supplement the interrogation methods, not re identification.
Judicial identification of 5.6.2 construction project quality
5.6.2.1 quality appraisal application
Litigation or arbitration cases involving construction project quality disputes, if the parties have disputes on the cause of the loss caused by the quality of the project, program, a lawyer should apply to the court for the parties to suggest or ruling bodies mentioned project quality appraisal application, determine the subject should undertake the engineering quality through the identification (construction units, reconnaissance units, design units, construction units, supervision unit), engineering quality loss procedures, scope.
Nature, in the engineering quality defect severity and causes and responsibility is determined, but also repair, deal with the quality defects of the reinforcement scheme and its cost was identified.
The two application can be within the time limit for adducing evidence.
For the quality identification should be cited in the paper proved before the expiration of the period, the lawyer would like to inform the parties, not to apply for quality identification, there may be court or an arbitration institution determines the proof cannot bear the adverse consequences.
The selected 5.6.2.2 identification unit
Consultation between the two sides selected identification unit, no consensus was commissioned by the people's court.
Identification of units must have the construction engineering or quality of housing quality testing.
Not through the construction project completion acceptance of quality disputes, in accordance with the "construction quality inspection management approach" third, clause four, must be commissioned to obtain the detection mechanism construction project issued by provincial, autonomous region, municipality directly under the Central People's government department in charge of construction quality inspection qualified identification.
To have passed the final acceptance, construction projects put into use quality disputes, in accordance with the "Regulations" management city dangerous housing provisions of article sixth, must be housing security identification agencies commissioned by the city, county governments real estate administrative departments were identified.
Identification of repair, reinforcement scheme on the quality defects, in accordance with the "provisions of design management of construction engineering exploration regulations" seventh, twenty-eighth, should be entrusted to the original design unit or the original design unit written consent, entrusted with the design of relevant design qualification units of.
Required for the repair, reinforcement scheme costs were identified, should be in accordance with the provisions of section "of construction project cost judicial authentication".
The 5.6.2.3 project quality appraisal fees in advance, the appraisal conclusion cross examination and re instituted appraisal content, can be related to the content on the "reference section of construction project cost judicial authentication".
Judicial identification of 5.6.3 construction project
5.6.3.1 project appraisal application
Relates to the construction schedule delay liability litigation or arbitration cases, the construction cycle is long, construction process, involving the characteristic of the subject of much, are often difficult to directly determine the duration extension responsibility, if the parties to the construction period delay caused by the reason, responsibility is controversial, lawyers should be parties to the proposed project appraisal application to the court or arbitration institution, determine the cause and responsibility delayed days, time delay of the subject and should be liable for damages, losses through the identification of.
The selected 5.6.3.2 identification unit
Consultation between the two sides to make identification unit, no consensus was commissioned by the people's court.
The current laws and administrative regulations, not to time identification of intelligence agencies to make the relevant provisions, but due to the identification of general time delay involved should be liable for damages, damages amount, so as to entrust to have the qualifications of engineering cost consultation institutions were identified as appropriate.
5.6.3.3 project appraisal cost in advance, the appraisal conclusion cross examination and re instituted appraisal content, can be related to the content on the "reference section of construction project cost judicial authentication".

The seventh section and the construction project contract dispute settlement in relation to other matters

5.7.1 capital, a contracting problem
Our current law does not prohibit the capital, contracting problems. In June 4, 1996, the Ministry of construction, the State Planning Commission, Ministry of finance "notice" on the strict prohibition on the construction of contract provisions, any construction units are not allowed to require the construction unit contract with capital as the tender conditions, it may impose the construction units will such content into the engineering contract...... The construction unit shall not in contract with capital projects contracting as a means of competition. The people's Bank of China released in June 5, 2003 silver [2003]121 "notice" on the further strengthening of the operational management of real estate credit third stipulation: the commercial banks to strictly prevent construction enterprises use bank loans underwritten real estate development projects. But these are the regulations.
The main form of capital, underwritten Construction: A, in the official text of the contract and the contractor in the contract clearly agreed the construction units do not advance the project, and by the construction unit with the funds to the construction, implementation of the project to a certain stage or degree, by the construction unit to pay the installment construction unit clause. The contracting as a contractual obligation to the Contractor's view; no underwritten construction in terms of B, but the official text of the contract, signed the supplemental agreement stipulates underwritten obligations; C, official text of the contract is not expressly agreed contractors underwritten obligations, but in the actual performance of the contract the two sides reached a tacit agreement, by the contractor with funds construction or the employer's deferred contractor project forced underwritten construction.
5.7.2 capital, underwritten in terms of effectiveness and treatment principle
The employer, the construction of the two sides agreed in the contract of construction, the Contractor does not require the employer to pay for projects or to pay part of the project, but the field construction, the construction to a certain stage of the project or the project is fully completed, the employer shall pay to advance the project items, should be identified.
Lawyers can prompt clients pay attention to the following circumstances:
(a) the employer, the construction people both with and without agreement pad capital and interest, will lead to different results:
The only agreed to cushion capital, has not agreed to the interest, the construction shall not request the employer to pay the interest;
The pay was not agreed, in accordance with the project arrears processing.
(two) the employer, the construction of the invalid part agreed aroused interest calculation standards higher than the people's Bank of China released during the same period loan interest rates.

The sixth chapter supplementary provisions

A legal document of 6.1 lawyers in the construction of legal service should be issued
The bidding documents, the lawyer for the construction project contract provided consulting, review, modify, making the relevant legal documents, issuing legal opinions, providing legal service or process the whole process of legal services etc.. The lawyer can serve as members of the bid evaluation committee.
Risk prevention in the construction of legal services 6.2 lawyers
Construction of legal service is a professional and strong, deals with the subject of great special services. Engage the services of a lawyer shall receive professional training and have the corresponding professional legal knowledge and industry knowledge. According to the "law" provisions of the people's Republic of China in forty-ninth, a lawyer should be in the construction bidding and legal services provided to bear corresponding civil liability of bid. At the same time, involves the construction of the great one, decided once a lawyer because mistakes in the work or provide legal opinion wrong and to the parties and the loss caused by very large, civil liability lawyers undertake corresponding major. Therefore, to participate in the proposed construction project legal services lawyers unit should cover insurance liability insurance, lawyer, the lawyer's civil liability implemented, the parties can rest assured to hire a lawyer to participate in the bidding activities.
6.3 this guidance is based on the existing provisions of national law, administrative regulations, rules and regulations, judicial interpretation and other related documents, combined with the construction practice of the operation for the lawyer. If the change laws and regulations and normative documents state, should be based on laws and regulations and normative documents on the basis of the new.
6.4 the operating guidelines by the Civil Service Commission of the all China Lawyers Association in April, by the all China Lawyers Association on the Standing Council, was performed in the years month day.

Suo Wenhai

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