Risks existing in the construction contract of the construction project;
1, risk of legality of construction contract text of construction project
The State Administration for Industry and Commerce and the Ministry of Construction have formulated a model construction contract text, which regulates the construction market contract text and fully reflects the responsibilities, rights and risks of both parties to the contract. However, in order to avoid their own risks, some employers do not use standard contract texts, but use some self-made and non-standard texts to sign contracts. Transfer project risks through self-made, general and vague text conditions.
2. The risk of construction projects not bidding according to law and violating legal procedures.
The Ministry of Construction has made corresponding provisions in the Measures for the Administration of Bidding for Engineering Construction and the Regulations on the Administration of Construction Market. Bidding content is the basic basis for concluding a construction contract, and bidding activities should be open, fair and just. If the employer and the contractor violate the above legal procedures, the construction project contract is invalid.
Article 9 of the Measures for the Administration of Construction Projects Submitted by the Ministry of Construction stipulates that "any construction project that has not been submitted for construction shall not go through the bidding procedures and issue a construction permit, and the design and construction unit shall not undertake the design and construction tasks of the project." Therefore, any construction project that is not included in the national and local government's capital construction plan or should be submitted for approval according to law is invalid, because the project construction itself is illegal, that is, the subject matter of the contract is illegal, and the signed contract is also invalid because there is no legal basis.
3. The subject of the construction contract of the construction project is illegal.
The qualification of the parties to a contract is the prerequisite for the effective establishment of a contract. A qualified subject must have corresponding capacity for civil rights and capacity for civil conduct. Therefore, whether the construction contract is valid depends first on whether the contract signing subject is qualified. The main body of a construction contract includes the employer and the contractor (including the general contractor and the subcontractor). The employer is the owner or operator of the construction project and the responsible party for project investment, operation and management. The contractor is a party with the qualification of project contracting subject recognized by the Employer. Both parties or one party to the contract does not meet the main conditions stipulated by the relevant laws of construction projects, which will lead to the invalidity of the construction project contract.
4, in violation of the relevant provisions of the subcontract construction contract.
Subcontracting refers to the behavior that the contractor transfers the contracted construction task to a third party after contracting the project, and the transferor withdraws from the contractual relationship. Some contractors won the bid at a low price in order to obtain the qualification for contracting construction projects. After winning the bid, they dismembered the project and subcontracted it to some unqualified construction teams at a lower price. These contractors lack the basic control steps and supervision means of contracting projects, which seriously affects the progress and quality of the projects and eventually forms a qualification dispute with the owners and subcontractors.
5. Risks caused by "black and white contract"
The problem that the construction unit colludes with the bidding unit or bidding agency to engage in false bidding and secretly decide the' black and white contract' is quite prominent. The so-called black contract means that in the process of project bidding, the construction unit not only signs the contract publicly, but also signs the contract privately with the winning bidder, forcing the winning bidder to contract with capital in advance and lowering the project cost. The black contract violates the relevant provisions of the bidding law, contract law and construction law, which can easily cause hidden dangers in the quality of construction projects, damage the interests of the builders and ultimately harm the interests of the builders.
6, the construction project contract price valuation risk
Article 8 of the Interim Measures for the Settlement of Construction Project Price specifies the types of construction project price in detail, including the determination of fixed total price, fixed unit price and adjustable price. Different construction projects should choose different price types and formulate corresponding restrictive clauses. For the fixed-price contract in the construction project contract, because the project price will not be adjusted due to price changes in the process of project implementation, the employer bears the least risk and the contractor bears the greatest risk, so the employer often adopts this contract method when concluding the construction project contract.
7, the risk of project payment
Arrears of project funds are a chronic disease in the construction market. From some government projects to real estate developers, they all play the black card of defaulting on project funds to varying degrees, which damages the legitimate rights and interests of construction enterprises and migrant workers and forces some migrant workers to jump off buildings and rivers to ask for hard-earned money. Under the control of corrupt officials, some government projects resorted to fraud in project bidding and other links to enrich themselves, which made the arrears of project funds once intensified. Project payment has become one of the most uncertain risk factors, which seriously puzzles and damages the rights and interests of construction enterprises.
8. Legal risks of the project.
In the process of construction, the contractor does not require the employer to pay the project payment or part of the project payment in advance, but uses its own funds to carry out the construction. After the project construction reaches a certain stage or the project is completed, the employer shall pay the advance payment. The employer usually signs the prepayment contract or prepayment clause in the form of "black and white contract", "quality bond", "performance bond or performance guarantee" and "loan contract".
In the construction process, due to excessive advance payment, contractors often face a lot of pressure from material suppliers, equipment suppliers, construction workers and loan banks. At this time, the contractor not only needs to raise funds for the project construction, but also faces the risk of being liable to the employer for breach of contract due to his own breach of contract. Therefore, some contractors may cut corners, lower the construction standards, or simply subcontract the whole project to pass on the risks, which is more likely to put themselves in a greater risk situation.
9. Material price risk
According to China's "Construction Law", there are two ways to supply materials for construction projects: the employer supplies them himself or the contractor purchases them according to the standards agreed in the contract. Generally speaking, about 70% of the construction cost is the material cost, so the contractor must take measures to prevent the material price risk. However, the rise and fall of material prices is normal, but for contractors, the sharp fluctuation of any major material will have a great impact.
10, risk of engineering claim
Claim is the right given to victims by contract and law, and it is a means for contractors to protect themselves, safeguard their legitimate rights and interests, avoid losses and increase profits. Therefore, when signing a contract, both parties to the contract should clearly stipulate the rights and obligations of both parties and the terms of the project compensation content, so as to prevent the risk of misunderstanding or even disputes leading to claims due to unclear contract stipulations.