In engineering practice, "pricing methods" generally refer to the differences of pricing rules, such as designated amount pricing and bill of quantities pricing, which do not involve changes in engineering quantities. When the "valuation method" is used in judicial practice, it often includes matters related to the total project amount, such as the form of contract price, the calculation of engineering quantity, the settlement method of project funds, etc. The scope of the two is inconsistent, and the latter covers almost all the elements of construction project settlement. The valuation method in this paper should refer to the latter. The project price is calculated according to quantity and price. Under the condition of constant quantity, different prices (price combination methods) will lead to different project prices. Item 1 of Article 1 of "Construction and Installation Engineering Cost Composition" stipulates: "The construction and installation engineering cost is divided into labor cost, material cost, construction machine use fee, enterprise management fee, profit, fees and taxes according to the cost composition." The seven categories of expenses can be divided into three categories: 1. Non-competitive expenses: expenses and taxes cannot be adjusted by both parties in the contract and can only be calculated according to the relevant regulations of the competent government departments; 2. Direct engineering cost: refers to the cost of forming the engineering entity itself, that is, labor cost, material cost and construction machinery use fee. Disputes in practice often come from the determination of direct engineering costs; 3. Other expenses: The enterprise management fee is an integral part of the measure fee and is generally not adjusted with the profit. The charging base can be determined according to the relevant regulations, and calculated according to the rate (such as enterprise management fee = corresponding project direct fee * specified rate; Profit = (direct cost+indirect cost-expense) * profit rate, etc. ). Therefore, the main dispute of cost dispute is the determination of labor cost, material cost and machine use fee in direct engineering cost. Other expenses have no fixed price and market price that can be adjusted or referenced. 2 Some concepts related to valuation (1) in engineering practice correspond to bill of quantities valuation, which are two different valuation modes (this paper will not expand). (2) The engineering quota refers to the standard of labor, materials, machines and tools, equipment and other related expenses required to complete the qualified part of the engineering quantity under the specified working conditions. Quota only reflects the content of each element when completing specific work, not the price. For example, to complete the installation of one meter water pipe, the engineering quota can reflect the need for 0. 1 labor, 1.2m PVC pipe, 0.8g detergent, etc. , but does not reflect the price information of PVC pipes, such as how much per meter. (3) The fixed price mentioned in the project generally refers to the unit price of artificial comprehensive man-days, which refers to the number of artificial man-days required to complete the fixed unit quantity; Fixed man-day unit price refers to the labor cost of a fixed man-day. If a job consumes three comprehensive man-days, and the unit price of each fixed man-day is 60 yuan, the fixed labor cost for completing the job is 3*60 yuan = 180 yuan. The corresponding concepts are workers' wages (for example, workers have to take 300 yuan RMB for a day's work, which is the daily work from the perspective of workers) and the clearing price (for example, putting up a shelf, 30,000 RMB); The government cost department will regularly or irregularly publish the fixed comprehensive man-day unit price as the basis for adjusting labor costs. (4) The market price in engineering practice generally refers to the specific price required for purchasing and leasing materials and equipment, and the corresponding concept is information price, that is, the average price calculated by the government cost department according to the consumption and social supply of various typical engineering materials through market research, which belongs to the social average price; The government cost department will regularly publish the information price as the basis for compiling the cost. (5) Comprehensive unit price refers to the labor cost, material cost, construction equipment use fee, enterprise management fee, profit and risk cost within a certain range required to complete a specified list project under the mode of bill of quantities valuation. However, the above concepts are rarely strictly distinguished in judicial practice. First, engineering terms are really not easy to understand. Second, price disputes often focus on material prices and labor prices, such as market prices and information prices, as well as fixed labor prices and settlement labor prices or daily labor prices. Directly expressed as fixed price and market price, although not in line with the customary usage in the engineering field, can also make people understand the main controversial facts. We believe that understanding the above concepts is helpful to correctly handle construction project price dispute cases and understand the follow-up content of this article. When the agreement is unclear, the problem of determining the valuation method can be transformed into: are the labor cost, material cost and machine use fee in the direct engineering cost determined according to the fixed price or market price? (In this paper, the relationship between fixed price and market price has been discussed in some related concepts, so in order to ensure consistency, no distinction is made. ). Some people quoted the provisions of Article 16 of the Judicial Interpretation of Construction Contracts, namely: "If the parties have an agreement on the pricing standard or method of construction projects, the project price shall be settled according to the agreement. If the engineering quantity or quality standard of the construction project changes due to design changes, and the parties cannot reach an agreement on the project price, the project price can be settled by referring to the pricing method or pricing standard issued by the local construction administrative department when signing the construction contract of the construction project. " It is considered that the quota issued by the local construction administrative department should be used as the valuation basis. We think that this clause limits the change of the quantity and quality standard of the project caused by the design change, which is inconsistent with the unclear project settlement method; Secondly, we think that the provisions of this clause are not clear enough, and the pricing method and standard are very vague concepts, and there is no clear and specific reference to fixed price and information price. Third, the word "may" is used in this clause, which may or may not be applicable to both parties, and even the construction unit may give up this part of the construction (under the premise of no restrictions in the contract); Therefore, this clause does not think that it should be calculated at a fixed price. The "reference" in the clause is actually a reference direction for some engineering quantities that cannot be determined due to design changes, and it is not mandatory. In practice, the main methods used by appraisal institutions to determine the direct cost of the project are as follows: regarding the labor price, there is no so-called market price, and even the treatment of the same type of work will vary according to the proficiency, age of workers, working environment and work intensity. When determining the labor cost, if there is no agreement or unclear agreement in the contract, the comprehensive man-day unit price issued by the local cost department is the only reference standard for the appraisal institution. Therefore, in the case that the labor price is not agreed or the agreement is not clear, the courts and appraisal institutions will generally directly use the fixed salary as the valuation standard. Its main legal basis is the comprehensive man-day unit price of construction projects issued by the local cost department. Regarding the price of materials: If there is no agreement or unclear agreement in the contract, there are at least two prices for reference, one is the information price and the other is the market price. In general, the information price is close to the market price, and because the information price is published by the government cost department on a monthly basis, it is clear and specific, and is not affected by the wishes of both parties. Therefore, in practice, if the price agreement is not clear, both parties often agree to group according to the information price. However, because the information price cannot cover all kinds of materials in the market, especially some professional or special engineering projects, such as special equipment involved in electromechanical installation engineering, it generally does not include the information price, even though the prices of similar products, different brands and different specifications vary greatly. In this case, the evaluation can not be conducted according to the information price, and the evaluation agency can only determine the material price after the market inquiry, that is, the market price shall prevail. About the use fee of construction machines and tools: it refers to the use fee of self-owned machinery and the rental fee paid by renting machinery, including depreciation fee (rental fee), installation and disassembly fee, etc. When dealing with this part of the expenses, if the appraisal agency can determine the machine-shift price, it will be calculated according to the agreed machine-shift price. If it is uncertain, the depreciation expense of self-owned equipment shall be calculated according to the purchase price of the equipment, and the lease expense shall be calculated according to the lease expense. The information price does not reflect the equipment rental fee or depreciation fee, so when determining the equipment rental fee, it must be calculated according to the market inquiry or the expenditure of the construction unit renting machinery and equipment in the market, that is, it is determined by the market price. The main legal basis for determining the cost of materials and the use of construction machines and tools according to the market price is Article 62 of the Contract Law: "If the parties have no clear agreement on the contract price or remuneration, it shall be performed according to the market price at the place of performance at the time of conclusion of the contract; If government pricing or government-guided pricing should be implemented according to law, it shall be implemented in accordance with regulations. " Where there is no explicit agreement in this clause, the market price at the place where the contract is performed shall prevail. It should be noted that although the project quota or the unit price of the quota man-day is the government-guided price, it is not mandatory. In addition, the First People's Court of the Supreme People's Court held: "The quota standard is arbitrary, and the contract agreement is inconsistent with the quota standard. In case of any inconsistency between the project payment settlement standard agreed in the construction contract and the project quota standard and cost valuation method promulgated by the competent department of construction industry, the contract shall prevail. The people's court shall not support the request for settlement according to the engineering quota standard on the grounds that the contract does not conform to the quota standard. Because the standard of construction engineering quota is determined by the local construction authorities according to the average cost of construction and installation in the local construction market, it can be understood that the standard quantity of labor, materials and mechanical shifts consumed to complete the unit project quantity belongs to the scope of government guidance price, and it is also an arbitrary quota rather than a mandatory quota. The parties to the contract should be allowed to set the project settlement price that is inconsistent with the quota standard. " 3. In the case of construction contract dispute between Qihe Huandun Steel Structure Co., Ltd. and Jinan Yongjun Materials Co., Ltd., the Supreme Court held: "When the agreement is unclear, the method of project cost evaluation is as follows:' First, when the parties have not agreed on a fixed price as the project price, it is generally not appropriate to determine the project price at a fixed price; Secondly, when determining the project cost according to the quota, the technical expertise, labor productivity level, material procurement channels and management ability of the enterprise are not considered ... Thirdly, the quota standard often cannot keep up with the change of the market price, while the market price information released by the construction administrative department is closer to the market price and the actual cost of the construction project ... The market price appraisal conclusion is closer to the cost and more conducive to protecting the interests of the parties. Finally, according to Item (2) of Article 62 of the Contract Law of People's Republic of China (PRC), if the contract price or remuneration is unclear and cannot be determined according to the provisions of Article 61 of the Contract Law, it shall be performed according to the market price at the place of performance when the contract is concluded. The Supreme Court's view and judicial practice are consistent with the provisions of Article 62 of the Contract Law, that is, when the agreement is unclear, it should be determined according to the market price, which is more conducive to balancing the interests of both parties. Conclusion If the contract is clear and specific, the evaluation agency will issue the project cost agreed by both parties. If there is no agreement or the agreement is not clear, the cost issued by the evaluation agency is actually closer to the project cost price, that is, the hidden profit of the construction unit is not considered, only the cost price is combined according to the relevant basis, and then the profit is calculated according to the proportion of the tour fee rules. This result makes the interests of both parties fluctuate within a certain range of the actual cost of the project, which is actually the embodiment of balancing the interests of both parties. The same is true from the perspective of interest balance. If the contract is invalid and the pricing method is not clear, to ensure the balance of interests of all parties, we must first make clear the actual cost of the project. The actual cost is not a fixed price, but a market price. To sum up, we believe that in the case of invalid contract and unclear pricing method, in order to balance the interests of both parties, the cost should be determined at market price. At the same time, we believe that the description and use of concepts such as quota, information price and market price in judicial practice are not clear and accurate enough. When the parties or lawyers apply for project cost appraisal, they ask the appraisal institution to appraise the project at a "fixed price". The appraisal institution will understand that the adult workers are appraised at a fixed price and ask whether the materials are appraised at the market price or the information price. Engineering lawyers should clarify the related concepts in the engineering field, and recommend the definitions and practical guides of the entries in the Encyclopedia of China Construction Engineering Contract Law compiled by the 8th Working Group of China Construction Engineering Law Standing Forum.
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