I. Overview of contract planning of construction projects
(I) Contract planning and issues to be considered At the initial stage of a construction project, relevant contract planning must be carried out. The goal of planning is to ensure the realization of the overall goal of the project through the contract, which must reflect the construction project strategy and enterprise strategy, and reflect the business policy and fundamental interests of the enterprise.
The main problems to be considered in contract planning are: the project should be divided into several independent contracts, and the scope of each contract; What kind of entrustment and contracting methods are adopted; The type, form and conditions of the contract; Determination of important terms of the contract; Decision-making on major issues in the process of contract signing and implementation; Coordinate the content, organization, technology and time of each contract.
(B) the significance of contract planning
(1) contract planning determines the organizational structure and management system of the project, as well as the division of responsibilities, rights and work in each link of the contract, so it has a fundamental impact on the whole project management. The owner entrusts the project task through the contract, and realizes the target control of the project through the contract.
(2) The contract is the means to implement the project, and the major relationships in all aspects are determined through planning. For both the owner and the contractor, perfect contract planning can ensure the smooth performance of the contract, overcome the disharmony of the relationship, reduce contradictions and disputes, and successfully realize the overall goal of the project.
(3) the basis of contract planning
(1) Owner: Owner's credit standing, fund supply capacity, management level and strength, owner's goals and certainty of goals, expected involvement depth of project management, owner's trust in engineers and contractors, owner's management style, owner's requirements for project quality and construction period, etc.
(2) Contractor: the contractor's ability, reputation, enterprise scale, management style and level, objectives and motivation in this project, current operating conditions, past experience in similar projects, business strategy, long-term motivation, ability to bear and resist risks, etc.
(3) Engineering: type, scale, characteristics, technical complexity, accuracy of engineering technical design, engineering quality requirements and certainty of engineering scope, planning degree, limitation of bidding time and construction period, profitability of engineering, engineering risk procedures, supply and constraint conditions of engineering resources (such as funds, materials, equipment, etc.). ).
(4) Environment: the legal environment in which the project is located, the fierce competition in the construction market, the stability of prices, the certainty of geological, climatic, natural and site conditions, the guarantee degree of resource supply, and the possibility of obtaining additional resources.
(4) Procedures for contract planning
(1) Study the enterprise strategy and project strategy, and determine the contract requirements of enterprises and projects.
(2) Determine the overall principles and objectives of the contract.
(3) Study some important issues of the contract by levels and objects, list various possible schemes, and comprehensively analyze the advantages and disadvantages of various schemes according to the above planning basis.
(4) Make decisions and arrangements on major issues of the contract, and put forward measures to fulfill the contract. Various forecasting and decision-making methods, risk analysis methods and technical and economic analysis methods are sometimes used in contract planning. At the beginning of preparing each contract tender and signing each contract, we should evaluate the contract planning.
Second, the owner's construction project contract planning
(a) Decentralized parallel contracting and turnkey contracting
(1) Decentralized parallel contracting means that the owner entrusts the design, equipment supply, civil engineering, electrical installation, mechanical installation, decoration and other engineering construction to different contractors. Each contractor signs a contract with the owner separately, and there is no contractual relationship between contractors. Characterized in that:
1) The owner has a lot of management work and tenders, which need careful planning and control, so sufficient time is needed in the early stage of the project.
2) The Owner shall be responsible for the coordination between contractors and the problems caused by mutual interference between contractors. Due to the influence of uncertain factors, coordination is difficult, there are many contract disputes, long construction period and many claims.
3) This contracting method needs careful control by the owner, who must have strong project management ability.
4) For large-scale engineering projects, this contracting method makes the owners face many contractors, which leads to long management span, difficult coordination, easy to cause confusion and out of control, and the owner's management cost increases, resulting in an increase in total investment and a prolonged construction period.
5) With this contracting method, the owner can bid in stages and strengthen the intervention in the project through coordination and project management. At the same time, there are some checks and balances between contractors.
6) With this contracting method, the planning and design of the project must be comprehensive, accurate and meticulous. In this way, the scope of work of each contractor is easy to determine and the responsibility boundary is clear.
(2) General contracting (also known as turnkey, design, construction and turnkey project) contract, that is, a contractor contracts all the work of a construction project and assumes all the engineering responsibilities to the owner, including the design, supply and construction of various professional projects, and even the pre-project planning, scheme selection, feasibility study and post-project operation management. The characteristics of this contracting mode are:
1) Reduce the number of contractors and transactional management work faced by the owner. The owner puts forward the overall requirements of the project, carries out macro-control and results acceptance, and usually does not interfere with the contractor's work, so there are fewer contract disputes and claims.
2) Convenient coordination and control, reducing a lot of repetitive management work, and convenient, fast and accurate information communication. It is beneficial to the management of construction site and reduces intermediate links, thus reducing the cost and shortening the construction period.
3) The owner's responsibility system is complete, which avoids all kinds of interference, is beneficial to both the owner and the contractor, and the overall benefit of the project is high.
4) The owner must choose a contractor with high credit reliability, strong strength and suitability for overall work. He not only needs to have the construction strength of various professional projects, but also needs strong design, management, supply and even project planning and financing capabilities.
(3) Take an intermediate form between the above two, that is, entrust the project to several contractors, such as design, construction, supply and other contractors.
(II) Selection of Bidding Methods The commonly used bidding methods in the world include open bidding, invitation bidding and negotiation. The Bidding Law of People's Republic of China (PRC) promulgated and implemented in China stipulates that bidding can be divided into open bidding and invitation bidding.
1. Open tender Open tender, also known as unlimited competitive tender, refers to the tender advertisement published by the tender unit in major newspapers and related publications at home and abroad, or on television and radio. Any contractor who meets the specified conditions can voluntarily participate in the bidding, and the number is not limited.
In this way, the tenderee has a wide choice, and can choose a contractor with reasonable quotation, short construction period and good reputation among many bidders. However, there may be multiple contractors participating in the competition, which increases the workload of pre-qualification and bid evaluation, and also increases the bidding cost. Open bidding has been used for a long time in the world, and it is also the most widely used bidding method in China. However, the management workload of the owner is heavy, so it is necessary to prepare a lot of pre-qualification documents and bidding documents, and also hold pre-qualification, bid evaluation and clarification meetings. Although the quotation can be reduced and the project quality can be improved, the bidding period is longer.
2. Invited bidding is also called limited competitive bidding. This kind of bidding does not publish advertisements, and the tendering unit sends invitation letters to a limited number of contractors selected in advance, inviting them to participate in the bidding competition of a certain project. Invitation to bid can generally ensure that the contractors participating in the bidding have engineering experience, reliable reputation and the ability to complete the project. The bidding unit can reduce the bidding workload, save the bidding cost and increase the chances of winning the bid for each bidder. However, this method limits the scope of competition and may miss some rising stars who are competitive in technology and quotation.
Invitation to bid is applicable to the following situations:
(1) Under special circumstances, due to the large scale of the project, the tenderer thinks that small and medium-sized construction enterprises are incompetent, so several large companies are selected to participate in the bidding.
(2) The project is complex and professional, and the tenderee thinks that only some enterprises can undertake it.
(3) The project is small in scale, so in order to save the bidding cost, the public bidding can be avoided.
(4) After public bidding, no one bids, so the tendering unit has to invite a few units to bid.
(five) projects that are not suitable for public bidding due to urgent construction period or confidentiality requirements.
Generally, 5 ~ 10 bidders are invited, not less than 3 bidders.
3. Bidding negotiation for special projects that are not suitable for public bidding or invitation to bid shall be reported to the construction administrative department of the local people's government at or above the county level, and may be negotiated after approval. In this way, the construction unit or its agent directly invites a contractor to negotiate, and after reaching an agreement, entrusts the engineering task to the contractor. If the negotiation fails, another one can be invited until an agreement is reached.
Negotiations usually apply to the following situations:
(1) The project is special in nature and complex in content, so it is impossible to clearly and specifically determine some technical details and approximate quantities when awarding the contract.
(2) The adoption of a new technology requires the cooperation of the construction unit from the design stage.
(3) Open tender or invitation to tender failed to produce the winning bidder.
(4) The project scale is not large, and the construction period is tight, so it needs to be designed and constructed at the same time.
This bidding method is easy to deal with some problems, which makes the two sides cooperate closely, but the competition is poor, which may make the contract price higher. Therefore, if there are no special circumstances, in order to standardize the behavior of the construction market, the bidding negotiation methods should be strictly restricted.
(III) Selection of contract types There are many ways to price contracts. Different types of contracts have different applicable conditions, different rights and responsibilities, and different payment methods. At the same time, the risks of both parties to the contract are different, so the contract type should be selected according to the specific situation. At present, there are mainly four types of contracts.
1. unit price contract This is the most common type of contract, with a wide range of applications, such as FIDIC civil engineering construction contracts. China's construction contracts are mainly of this kind. In this kind of contract, the contractor only bears the quotation risk stipulated in the contract, that is, he is responsible for the correctness and suitability of the quotation (mainly the unit price); The risk of engineering quantity change shall be borne by the owner. Due to the reasonable risk distribution, it can adapt to most projects and mobilize the management enthusiasm of both contractors and owners. Unit price contract is divided into fixed unit price contract and adjustable unit price contract.
Unit price contract is characterized by unit price priority, such as FIDIC construction contract. The quantities in the bill of quantities given by the owner are reference figures, and the actual contract price is calculated according to the actually completed quantities and the unit price quoted by the contractor. Although in bidding, bid evaluation and contract signing, people often pay attention to the total contract price, but in project payment settlement, the unit price is the priority, so the unit price can't be wrong. For obvious numerical calculation errors in the tender, the owner has the right to modify them before bid evaluation.
Determine lump sum contract.
(1) The concept and characteristics of lump sum contract are fixed. This contract adopts the total commission price, and the price does not change with the change of environment and the increase or decrease of engineering quantity. Therefore, the contractor bears all the workload and price risks in this contract. Except for major design changes, it is generally not allowed to adjust the contract price. In modern engineering, especially in joint venture projects, the owner likes to adopt this contract form because:
(1) the settlement method of both parties to the project is relatively simple.
(2) In the implementation of fixed lump sum contract, there are fewer opportunities for the contractor to claim compensation (but the claim cannot be eradicated). Usually, it can avoid the trouble that the owner needs the approval of the superior for additional contract price and additional investment, such as the approval of the board of directors or even the shareholders' meeting.
However, because the contractor bears all risks, the cost of unforeseen risks in the quotation is higher. The determination of contractor's quotation must consider the influence of price change and engineering quantity change during construction. During the execution of this contract, because the owner has no risk, he has less power to intervene in the project regardless of the overall objectives and requirements.
(2) The application premise of fixed lump sum contract in the past, the application scope of fixed lump sum contract was very small:
(1) The scope of the project must be clear, the reported quantities should be accurate rather than estimated, and the contractor must carefully review them.
② Fine engineering design, complete, detailed and clear drawings.
(3) Engineering quantity? The construction period is short, it is estimated that the environmental factors (especially the price) will not change much during the project period, and the project conditions are stable and reasonable.
④ The engineering structure and technology are simple, the risk is small and the quotation estimation is convenient.
(5) The bidding period of this project is abundant, so the contractor can conduct detailed on-site inspection, review the workload, analyze the bidding documents and draw up a plan.
⑥ The contract conditions are complete, and the rights and obligations of both parties are very clear.
(3) lump sum contract's fixed pricing method.
(1) the owner gives the bill of quantities for the convenience of the contractor to bid, but the owner is not responsible for the quantity in the bill of quantities, and the contractor must review it. The sum of the fixed total price of each subdivisional work is the price of the whole project.
(2) If the bill of quantities is not given in the tender documents, but formulated by the contractor, the bill of quantities is only used as a payment document and does not belong to the engineering data stipulated in the contract. The total contract price consists of the fixed total price of each subdivisional work. The contractor must calculate the engineering quantity according to the engineering information. If the engineering quantity is omitted or miscalculated, it will be deemed to be included in the total contract price.
(4) Determination of Fixed lump sum contract Fixed lump sum contract is the priority of the total price. The contractor quoted the total price, and the two parties agreed on the total contract price, and finally settled according to the total price. Under normal circumstances, the contract price is only allowed to be adjusted when the design changes or the price adjustment conditions stipulated in the contract are met.
(5) Contractor's risk when adopting fixed lump sum contract.
① Price risk: calculation error of quotation; Missed projects; Risks of price increase and labor cost increase in project implementation.
② Workload risk: error in workload calculation; Losses caused by uncertain project scope or incomplete project list during budget; Calculation error of engineering quantity caused by insufficient design depth.
3. The cost plus fee contract is contrary to the fixed lump sum contract. The final contract price of the project is calculated according to the actual cost of the contractor plus a certain percentage of remuneration (management fee). When signing a contract, the specific contract price cannot be determined, only the rate of return can be determined. Because the contract price is settled according to the actual cost of the contractor, in this kind of contract, the contractor does not bear any risks, while the owner bears all the workload and price risks, so the contractor has no enthusiasm for cost control in the project, and often does not want to reduce the cost, but expects to increase the cost to improve his economic benefits. This will damage the overall benefit of the project. Therefore, the use of this kind of contract should be strictly restricted, which usually applies to the following situations:
(1) The basis of the bidding stage is inaccurate, the project scope cannot be defined, the project cannot be evaluated accurately, and the detailed description of the project is lacking.
(2) The project is particularly complicated, and it is impossible to determine the engineering technology and structural scheme in advance. They can be determined according to the new situation in the project.
(3) Time is particularly pressing, and it is required to start work as soon as possible. For example, rescue and emergency projects cannot be planned and discussed in detail.
In order to overcome the shortcomings of this contract and arouse the contractor's enthusiasm for cost control, the above contract can be improved: determine the target cost in advance, pay the actual cost in proportion within the target cost range, and do not increase the reward if it exceeds the target cost; If the actual cost is lower than the target cost, the contractor shall be rewarded according to a certain proportion in addition to the remuneration stipulated in the contract; Cost plus a fixed amount of remuneration does not change with the actual cost quantity.
4. Target contract This is a combination of fixed lump sum contract and cost plus fee contract, which is widely used in industrial projects, R&D projects and military engineering projects in developed countries.
The target contract contracts the project in the form of turnkey. Usually, the contract stipulates that the contractor is responsible for the production capacity or function, the total cost of the project and the time limit for a project after completion. If the scheduled production capacity cannot be reached within the specified time after the project is put into production, the contract price shall be deducted according to a certain proportion; If the construction period is delayed, the contractor shall bear the liquidated damages for the delay; If the actual total cost is lower than the predetermined total cost, the saved part will be awarded to the contractor in a predetermined proportion, otherwise it will be borne by the contractor in proportion.
(IV) Determination of important contract terms The owner should treat the contract correctly and have reasonable requirements for the contract, but should not be demanding. The owner is in a dominant position in the contract. He drafts the tender documents and determines some important contract terms. Mainly includes:
(1) Applicable laws of contractual relations, as well as the place and procedure of contract dispute arbitration.
(2) payment method. Such as installment payment, installment payment, advance payment or contracting by the contractor. This is determined by factors such as the guarantee of the owner's source of funds. Allowing the contractor to invest too much in the project will have a direct impact on the contractor's risk, financial situation, quotation and performance enthusiasm. Of course, if the owner prepays the project payment beyond the actual progress, it will bring risks to the owner without the contractor's guarantee.
(3) Conditions, scope and methods of contract price adjustment, especially the provisions on contract price adjustment caused by price increase, exchange rate change, legal change and customs tariff change.
(4) Risk sharing of both parties to the contract. That is, the project risk is reasonably distributed between the owner and the contractor. The basic principle is to motivate contractors through risk allocation, control risks and achieve the best economic benefits.
(5) Incentive measures for contractors.
(6) The owner's control of the project is realized through the contract, and complete control measures must be designed in the contract to ensure the control of the project, such as the power to change the project; The power to approve and supervise the plan; The right to check the quality of the project; Control of project payment; When the construction progress is delayed, the motivation to speed up the progress; When the contractor fails to perform the contract responsibilities, the owner's right to deal with it, etc.
Third, the contractor's contract planning The contractor's contract planning is subject to the contractor's basic objectives and business strategy.
(I) Selection of Bidding The contractor must make a strategic decision on the bidding direction, which depends on the market situation, mainly including:
(1) Contract market and competition.
(2) The number and status of competitors in this project, so as to determine their competitiveness and the possibility of winning the bid.
(3) The situation of the project and the owner. Including the technical difficulty of the project, the technology, technology and equipment required for construction, the requirements for the construction period and the degree of influence of the project; The provisions and requirements of the owner on the contract mode, contract type, bidding mode and main terms of the contract; The owner's credit standing, the history of dishonesty and non-payment, the preparation of the owner's construction funds and the operation of the enterprise.
(4) The contractor's own situation. Including the company's strengths and weaknesses, technical level, construction strength, financial situation, similar project experience, the number of existing projects, etc.
The determination of the contractor's bidding direction should give full play to its own advantages and conform to its business strategy, and do not attempt to contract projects beyond its own construction technical level, management ability and financial ability and uncompetitive projects.
(II) Contract Risk Assessment In general, if the project has the following problems, the project risk is high:
(1) The project has a large scale and a long construction period, but the owner requires a fixed lump sum contract form.
(2) The Owner only provides preliminary design documents for the contractor to bid, and the drawings are not detailed or complete, and the engineering quantity is inaccurate and the scope is not clear, or the compensation clause for engineering change in the contract is unfavorable to the contractor, but the Owner requires the use of fixed lump sum contract.
(3) The owner has shortened the bidding period, and the contractor has no time to analyze the bidding documents in detail. Moreover, the tender documents are in foreign languages and adopt contract conditions unfamiliar to the contractor.
(4) There are many uncertainties in the engineering environment, and the owner requires a fixed-price contract.
(III) Selection of contracting methods It is impossible for any contractor to complete all the projects independently, which is not only limited by capacity, but also uneconomical. Before bidding for the general contract, he must consider the way of cooperation with other contractors, so as to give full play to their respective advantages in technology, management and financial resources and take risks.
1. The main reasons for subcontracting are as follows:
(1) is technically necessary. It is impossible and unnecessary for the general contractor to have the construction ability of all professional projects within the scope of the general contracting project. Subcontracting can make up for the shortage of technology, manpower, equipment and funds of the general contractor. At the same time, the general contractor can expand the business scope through this form and undertake projects that he cannot undertake independently.
(2) Economic purpose. Some sub-projects, if undertaken by the general contractor, will lose money, but they are subcontracted to subcontractors with low quotations and strong abilities. The general contractor can not only avoid losses, but also obtain certain economic benefits.
(3) transfer or reduce risks. Through subcontracting, the risk of general contracting can be partly passed on to subcontractors. In this way, everyone bears the risk of general contracting and improves the economic benefits of the project.
(4) Owner's requirements. There are usually two situations when the owner instructs the general contractor to subcontract some subprojects:
1) For some sub-projects with special specialties or special skills, the owner only trusts and trusts one professional contractor, and can ask or suggest the general contractor to subcontract these projects to professional contractors, that is, the subcontractor designated by the owner.
2) In international projects, some countries stipulate that foreign general contractors must subcontract a certain number of projects to domestic contractors after undertaking projects; Or the project can only be undertaken by domestic contractors and subcontracted by foreign contractors. This is a protective measure for domestic enterprises.
Owners have higher requirements for subcontractors, and they should also conduct qualification examination for subcontractors. Without the consent of the engineer (owner's representative), the contractor shall not subcontract the project at will. As the contractor assumes all engineering responsibilities to the owner, and the general contractor is responsible for any problems of subcontractors, the selection of subcontractors should be very cautious. Generally, it is necessary to determine the subcontractor's quotation before the general contracting quotation, discuss the main conditions of subcontracting, and even sign a letter of intent for subcontracting.
2. Joint contracting Joint contracting refers to two or more contractors (most commonly design contractors, equipment suppliers and construction contractors) in joint bid. Its advantages are:
(1) Contractors can combine through joint ventures to undertake projects with large quantities, complex technologies and high risks that are difficult to undertake exclusively, and expand their business scope.
(2) Give full play to the technical and economic advantages of the parties to the joint venture in bidding, so as to make the quotation competitive. Moreover, the joint venture usually undertakes the project in the form of all-inclusive, and the members of the joint venture bear joint and several legal responsibilities. The owners are more welcome and reassured, and it is easy to win the bid.
(3) In international projects, foreign contractors can get preferential prices if they work with local contractors in joint bid. This will increase the competitiveness of the quotation.
(4) In the execution of the contract, the parties to the joint venture support each other, learn from each other's strong points and carry out technical and economic cooperation. This can reduce the engineering risk, enhance the contractor's ability to deal with emergencies, and achieve better engineering economic results.
(5) Under normal circumstances, joint ventures are only carried out in a certain project. At the end of the project, the joint venture company will be dissolved and there will be no other concerns. If willing, all parties can continue to seek new opportunities for cooperation. Therefore, it has greater flexibility than joint ventures and joint ventures. A joint venture to set up a new company with legal personality is usually costly and complicated in operation. The parent company only bears limited liability, and the owners don't trust it.
(IV) Contract execution strategy The contract execution strategy is the basic policy for the contractor to execute the contract according to the specific conditions of the enterprise and the project.
(1) The enterprise must consider the position and importance of this project among many projects in the same period of the enterprise and determine the priority level. For important projects that have a significant impact, such as brand-name projects, large and extra-large projects that have a significant impact on the reputation of enterprises, and projects in areas where enterprises are ready to develop their business, every effort should be made to ensure that manpower, material resources and financial resources are given priority.
(2) The contractor must perform the contract enthusiastically and successfully with a positive and cooperative attitude. In the project, especially when encountering major problems, actively cooperate with the owner to win the trust and credibility of the owner. For example, in the Middle East, some contracts can be torn up in accordance with the regulations when they encounter force majeure (such as war and unrest) after signing or executing, but some contractors understand the difficulties of the owners, suspend construction, and take measures to protect the site and reduce the losses of the owners. Continue to perform the contract after the interference event. This not only kept the contract, made a profit, but also won credibility.
(3) For projects that obviously lead to losses, especially the unbearable losses of enterprises, or the poor credit of owners, it is difficult to continue cooperation, and sometimes they are willing to tear up the contract to solve the problem. Sometimes the contractor terminates the contract voluntarily, which is more costly than continuing to perform the contract? Especially when the contractor has fallen into the trap, the contract is unfavorable and the risk has occurred.
(4) In the project construction, due to the responsibility of the non-contractor, the contractor made a reasonable claim, but the owner refused to solve it. During the execution of the contract, the contractor can directly or indirectly express the enthusiasm and enthusiasm for performance by controlling the progress, exert pressure and influence on the owner, and seek a reasonable solution.
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