The contracting units and contractors of construction projects shall conclude written contracts according to law. The Contract Law clearly stipulates that a construction project contract shall be in written form. Therefore, a construction project contract concluded orally or in other forms does not conform to the legal provisions and is an invalid contract. When the contract is performed, the contractor and the contractor shall fully perform their obligations stipulated in the contract. Those who fail to perform their obligations in accordance with the provisions of the contract shall bear the liability for breach of contract according to law.
Experience has repeatedly proved that under the conditions of socialist market economy, the reform of "project legal person responsibility system, bidding system and construction supervision system" in construction projects must adhere to the international general terms, proceed from China's national conditions, and take strengthening contract management as a breakthrough. Contract management based on the concept of rule of law is the soul of project management. Project management should implement the concept of contract management, take information management as a means, coordinate the relationship between all parties involved in the project, and effectively achieve the goals of project safety, quality, progress and investment.
The basic problems of project contract management include: premise, value, foundation, subject, focus and future.
The Premise of Contract Management-Attaching Importance to Contract
The times call for the rule of law. The rule of law can be divided into big rule of law and small rule of law. The concentrated expression of small rule of law is "the rules and principles of contract".
Carrying out the concept of rule of law and implementing "contract rules and principles" in construction projects is the only choice to adapt to the conditions of market economy system on the platform of World Trade Organization. International project (the project owner selects and employs foreign contractors with legal personality or joint ventures of domestic and foreign contractors to implement the project through international bidding in accordance with internationally accepted procedures and practices. All large-scale projects built with loans from international financial organizations can be international projects. Construction contract is regarded as the "building constitution", and contract management is the core content of construction management, which is the most concentrated and powerful example. For China's construction field, in the process of perfecting the socialist market economic system after China's accession to the World Trade Organization, we must practice the pure concept of "contract management" and make great efforts on the basic issue of "what kind of contract should be emphasized and how to emphasize it".
The Value of Contract Management —— Improving Core Competitiveness
Establishing a contract management mechanism that is owner-oriented, design-based, construction-oriented, and supervision-oriented will effectively promote construction enterprises to establish an asset management mechanism that is market-oriented, project-based, financial management-centered, and asset management-oriented, and promote the improvement of their core competence and corresponding market competitiveness.
The Foundation of Contract Management-Excellent Contract
Excellent contract
The first premise of the rule of law is to formulate good laws; The primary requirement of contract governance and contract theory is to establish an excellent contract. A good law should be comprehensive, strict, adaptable and accessible; A good contract should also be comprehensive, strict, adaptable and easy to understand.
"FIDIC contract terms" is now a typical standardized contract.
-19 13 International Federation of Consulting Engineers (FIDIC) was established in Lausanne, Switzerland. For more than 40 years, the terms of international engineering construction contracts, which are widely used for reference, eclectic, brainstorming and comprehensive, are the "standard contract terms format". FIDIC Contract Terms, which has been bred for more than 40 years, was first published in June 1957, and has now developed into the fifth edition. "FIDIC contract terms" is a dialectical contract term with a solid ideological foundation. It is an internationally accepted standard contract term and is worth learning.
Comparison between general terms and special terms of FIDIC contract;
-content. General terms to express the * * * nature of the class (purpose, power and obligation, responsibility, rewards and punishments, supervision and judgment); Special terms, define the specific form of individual * * * (class * * *) and supplement personality.
-existence. General terms and conditions are included in any specific contract without any modification; Special terms and conditions, further clarify the vague parts in the general terms and conditions, and supplement the characteristics.
-Relationship. The general terms and conditions correspond to the special terms and conditions one by one, and the terms are the same. Both of them embody the dialectical planning method of "individual → general → individual"
-Applicable. Strict legal form, contract rules, contract principles, standardization and normalization. Generally speaking, the general terms and conditions are used together with the special terms and conditions. In case of conflict, the special terms and conditions shall prevail.
FIDIC Contract Terms of Water Conservancy and Hydropower Construction in China
China already has its own FIDIC contract terms-FIDIC contract terms for water conservancy and hydropower construction in China, which is a model text of the 2000 edition water conservancy and hydropower project construction contract and bidding documents. On February 23, 2000, the Ministry of Water Resources, the State Power Company and the State Administration for Industry and Commerce jointly issued the Notice on Printing and Distributing Model Texts of Construction Contracts and Bidding Documents for Water Conservancy and Hydropower Projects (Shui Jian Guan (2000) No.62), pointing out that:
In order to strengthen the market management of water conservancy and hydropower construction, standardize the bidding work and contract management, effectively protect the legitimate rights and interests of both the employer and the contractor, and ensure that the construction management and project bidding of water conservancy and hydropower projects are carried out in a healthy and orderly manner on a fair and just basis, according to the provisions of the Contract Law of People's Republic of China (PRC) and the Bidding Law of People's Republic of China (PRC), the model texts of construction contracts and bidding documents of water conservancy and hydropower projects are hereby issued.
When compiling the tender documents and construction contract documents, the water conservancy and hydropower project contracting parties shall apply the contract conditions in accordance with the provisions of Article 3 of this Notice, and may learn from and demonstrate other documents according to the actual situation of the construction project, but shall not violate the principles of justice and fairness established or implied in the contract conditions. If the contents of the above documents are inconsistent with the provisions of the contract conditions, the contract conditions shall prevail.
The contract conditions are divided into two parts: general contract terms and special contract terms.
1. "General Terms and Conditions of Contract" shall be quoted in full and shall not be deleted.
2. The "Special Terms and Conditions" shall be revised and supplemented according to the quantity and content of the project terms.
3. Except for the numbered clauses listed in the special contract terms, the contents of other clauses in the general contract terms shall not be changed. If it is really necessary to change the contents of the General Terms and Conditions of Contract due to special engineering circumstances, it shall be reported to the Ministry of Water Resources, the State Power Company and the competent department of the State Administration for Industry and Commerce for approval according to the project management affiliation.
The construction management of water conservancy and hydropower projects should fully implement the construction supervision system according to the relevant provisions of the Ministry of Water Resources and the State Power Company, and the employer should entrust a unit with the supervision qualification of water conservancy and hydropower projects to undertake the supervision work. The supervisor shall perform his duties fairly within the scope authorized by the Employer.
According to the current situation of insufficient liquidity in China's water conservancy and hydropower construction enterprises, in order to ensure the smooth construction of the project according to the contract plan, the employer should timely allocate the project advance payment according to the provisions of the contract conditions, and shall not require or ask the contractor to bring capital for construction in disguise. The amount of advance payment for the project is determined scientifically by the employer through the preparation of the construction plan and the flow of funds during the project bidding. The total advance payment shall not be less than 10% of the total contract price, and the first advance payment shall not be less than 40% of the total advance payment.
Except for some small engineering equipment (such as observation instruments) that can be purchased by the contractor, the employer shall be responsible for providing permanent engineering equipment. In principle, the contractor shall be responsible for the procurement, acceptance, transportation and storage of materials and construction equipment required for the project. In the future, in order to avoid overlapping responsibilities in material supply, the complexity of contract management will increase, and it is not appropriate for the employer to purchase materials by itself and then supply them to the contractor. If it is really due to the special needs of the project, the Employer may specify the material source. The contractor shall sign the contract directly with the supplier, but the employer shall bear the relevant responsibilities arising from the specified material supply source.
The employer shall properly solve the problem of price adjustment in the process of engineering construction. In principle, the formula method stipulated in the contract conditions should be adopted to adjust the price, and the adjustable coefficient, fixed value weight coefficient and variable value weight coefficient should be determined according to the principle of reasonably sharing the price risk. If it is really difficult to adjust the price by using the formula method specified in the contract conditions due to the specific conditions of the project, a scientific and operable price adjustment method acceptable to both parties should be specified in detail in the special contract terms.
Due to the complexity of water conservancy and hydropower projects, changes and claims in the process of project construction belong to the normal category of orderly contract management, and should be handled in a timely, fair and just manner according to the procedures stipulated in the contract conditions to avoid the accumulation of problems and increase the difficulty of post-processing. For the claim, the records at that time should be made in time to facilitate the supervision unit to make a fair decision.
"Conditions of Contract" draws lessons from the experience of some international and domestic projects in solving contract disputes, and stipulates that a contract dispute mediation mechanism should be established in the construction of water conservancy and hydropower projects. When the decision of the supervision unit cannot be accepted by both parties to the contract or any of them, the dispute mediation team or industry dispute mediation agency hired by both parties can mediate at the beginning of the contract execution to seek a reasonable solution to the dispute.
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