How to complete the settlement of the construction project that has been delayed for a long time by means of examination and substitution?

How should the different price forms agreed in the contract be settled?

Fixed price

The fixed price is the calculation method of the risk scope and risk fee included in the contract price agreed by both parties in the contract, and the contract price will not be adjusted within the agreed risk range. If a dispute arises between the parties, the fixed price agreed in the contract is the basis for determining the project price. Article 22 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that if the parties agree to settle the project price at a fixed price, and one party requests an appraisal of the construction project cost, it shall not be supported. However, if the parties to the contract agree on the method of adjusting the contract price outside the scope of risk, it shall be determined in accordance with the agreed method. For the part other than the fixed price, the project price shall be determined separately.

Adjustable prices

Adjustable price is the method by which both parties agree on the price adjustment in the contract. Factors that adjust the contract price in an adjustable-price contract include:

(1) Changes in laws, administrative regulations and relevant national policies affect the contract price;

(2) the price adjustment announced by the project cost management department;

(3) The work is suspended for more than 8 hours in a week due to water outages, power outages, and gas outages not attributable to the contractor;

(4) Other factors agreed by both parties. Therefore, there should be no objection to the determination of the project price according to the method of adjustment of the project price agreed in the contract.

If there is no agreement on the method of price adjustment in the contract or the agreement is unclear, it shall be determined according to the supplementary agreement, the conclusion of the systematic interpretation of the contract and the trading habits of both parties. Only market prices, government pricing or market guidance prices can be applied. If the quantity or quality standards of the construction project change due to design changes, and the parties cannot reach a consensus on the price of this part of the project, the project price may be settled with reference to the pricing method or pricing standard issued by the local construction administrative department when signing the construction contract. If the parties cannot reach an agreement on the determination of the project price, the pricing method or pricing standard issued by the local construction administrative department at the time of signing the construction contract shall be directly applied to determine the project price. Such determination rules may also be applied to the determination of the project price other than the fixed-price determination project price.

Cost plus honorarium

The project price includes two parts: cost and remuneration, the cost generally includes direct costs and indirect costs, and the remuneration generally refers to profits. It is specifically agreed by both parties in the contract. If there is a dispute between the two parties, the agreement in the contract is the basis for determining the project price. If there is no agreement or the agreement is unclear, the determination rules are the same as the above rules for determining adjustable prices.

Because the parties can not reach an agreement, in other words, in the case of a very clear agreement, one party is not recognized by this result should be dealt with? However, the audit conclusion issued by the project cost consulting unit is not recognized, how to determine the project cost? First, the construction administrative department of the people's government at or above the county level can carry out mediation, and reach an agreement through mediation, that is, the parties have determined the audit conclusion, then the audit conclusion is the basis for determining the project price; if it is not recognized, then one of the parties can only apply for arbitration or file a lawsuit with the court to determine the project price, whether it is arbitration or litigation in the procedure to determine the project price method is generally achieved through judicial appraisal. Article 23 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that if the parties have disputes over some of the facts of the case, only the disputed facts shall be evaluated, unless the scope of the disputed facts cannot be determined, or both parties request an appraisal of all the facts. The appraisal in this article includes the appraisal of the price of the project.

How to handle the project settlement of black and white contracts?

Article 24 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (hereinafter referred to as the Judicial Interpretation of Construction Projects) stipulates that: "Where several construction contracts entered into by the parties for the same construction project are invalid, but the quality of the construction project is up to standard, and one party requests that the contractor be compensated at a discount with reference to the agreed discount of the project price in the contract actually performed, the people's court shall support it." This article upholds the authority of the Tendering and Bidding Law and stipulates the principles for dealing with black-and-white contracts, which are more common in the field of construction projects. How should the validity of black and white contracts be determined in terms of independent bidding, independent filing, explicit and implicit bidding, etc.?

Black and white contracts, also known as yin and yang contracts, generally refer to two contracts signed by the parties to the same contract in order to achieve certain interests, with obvious differences in prices or differences in performance methods, one of which is used for registration, filing and other publicity, while the other is held by the parties to the contract, in which the registered contract is called a white contract or a yang contract, and the contract held by the parties to the contract is called a black contract or a yin contract.

Article 46 of the Tendering and Bidding Law stipulates: "The tenderer and the winning bidder shall, within 30 days from the date of issuance of the notice of winning the bid, enter into a written contract in accordance with the bidding documents and the bidding documents of the winning bidder." The tenderer and the winning bidder shall not enter into other agreements that deviate from the substantive content of the contract. Article 24 of the Judicial Interpretation of Construction Projects I follows the expression of "substantive content" in Article 46 of the Tendering and Bidding Law. How to determine "substantive inconsistency"?

Article 488 of the Civil Code of the People's Republic of China: "The content of the promise shall be consistent with the content of the offer. If the offeree makes substantial changes to the content of the offer, it is a new offer. Changes in the subject matter, quantity, quality, price or remuneration, performance period, place and method of performance, liability for breach of contract and dispute resolution method are substantive changes to the content of the offer. "In the construction contract, it generally refers to the terms including the scope of the project, the construction period, the commencement and completion time of the intermediate delivery project, the quality of the project, the project cost, the delivery time of technical data, the responsibility for the supply of materials and equipment, the appropriation and settlement, the completion acceptance, the scope of quality warranty and the quality assurance period, and the mutual cooperation between the two parties. The nature of a construction project falls within the scope of administrative compulsory management, and a change in the nature of the project should be deemed to be a substantive change. In addition, the core clause related to the rights and obligations of the parties in the construction project is the project settlement, and the main aspects affecting the project settlement are three aspects: project quantity, project quality and project duration. The changes in other terms have little impact on the settlement of the project payment, and generally only involve the judgment of the liability for breach of contract, and are not changes in the substantive content, and should not affect the validity of the contract. If there are major changes in the scope of the project, the construction period, the construction quality, the project price, etc., it is a substantive change.

1. Change of project quality

If the requirements for the quality of the project are qualified when the contract is signed, and the quality of the project is required to be excellent after the contract is signed, in order to meet the quality requirements of the project, the cost of the project will inevitably increase, and the change of the contract at this time is in line with the principle of consistency of rights and obligations, and the contract shall be deemed to be a supplement to the winning contract. On the contrary, if a separate contract lowers the quality standards and lowers the project price, and there is no record, then the change is a substantive change and the contract is invalid

2. Changes in the contract price

When bidding, because it has been professionally evaluated, the tender announcement has been issued, the bidder has prepared the bidding documents and other procedures, the general scope of the project, the quantity of the project has been roughly determined, even if there are slight changes, the project price should not fluctuate. If there is a big change, the bidding should be re-conducted and recorded, otherwise there is a suspicion of malicious collusion to damage the interests of other bidders, and then it can be determined that there is a black contract with different substantive contents.

In judging the inconsistency of substantive content, attention should be paid to the relationship between the determination of the black and white contract and the right of the parties to modify the contract. After the commencement of a construction project, if the employer and the contractor change the construction period, project price, and the nature of the project through supplementary agreements, meeting minutes, correspondence, visas, and other forms of business records due to objective reasons such as design changes and adjustment of construction project planning indicators, it is a normal contract change and shall not be deemed to be a change in the substantive content of the bid-winning contract. If the price of building materials changes abnormally, should the supplementary agreement signed separately due to the price change be deemed to change the substantive content of the winning contract? There are also two views on this: first, the change in the price of building materials is not controlled by man, and it is unpredictable when the contract is concluded, and it does not belong to the substantive content change of the winning contract; second, the construction party, as a professional subject engaged in the construction industry, should have a full understanding of the price change of building materials, and has taken the price change into account when participating in the bidding and quotation, and the supplementary agreement signed separately for the price change constitutes a substantive content change. It is generally believed that the price change of building materials, within a reasonable range, the supplementary contract signed separately should not be recognized as a change in the substantive content, and at the same time, when entering into a construction contract, in order to avoid disputes, you can choose to stipulate the allowable range of price changes of building materials in the contract.

Determination of the validity of black and white contracts

Compulsory bidding projects

Article 3 of the Tendering and Bidding Law stipulates that: "Bidding must be conducted within the territory of the People's Republic of China for the following engineering construction projects, including the survey, design, construction, supervision of the project, and the procurement of important equipment and materials related to the construction of the project: (1) large-scale infrastructure, public utilities and other projects related to the public interest and public safety; (2) projects that use all or part of state-owned funds for investment or state financing; (3) projects that use loans and aid funds from international organizations or foreign governments." Article 4 stipulates: "No unit or individual may divide the project that must be tendered according to law into parts or avoid bidding in any other way." "Compulsory bidding projects refer to construction projects that must be contracted through bidding and bidding in accordance with laws or administrative regulations. For the construction contract signed without going through the bidding procedure for the project subject to compulsory bidding, according to Article 153 of the Civil Code of the People's Republic of China, the contract is invalid because it violates the mandatory provisions of the law. For the compulsory bidding of the project through the bidding procedures signed construction contract and recorded, in addition to the record contract signed a construction contract, the actual performance of the construction contract and the record of the substantive content of the contract is inconsistent, the contract for the record of the contract is valid and as the basis for the settlement of the project price.

Projects that are not subject to compulsory bidding but have gone through the bidding process

For non-compulsory bidding projects, the construction unit shall conduct bidding according to the requirements of the competent department or voluntarily and sign the construction contract according to the bidding results, and the contract shall be recorded. If, in addition to the recorded contract, the parties sign a contract with different substantive content and fail to file it, which contract should be used as the basis for settling the project price? There are two views on this: one view is that for a project for which the employer voluntarily conducts bidding, as long as the contract signed separately in addition to the recorded contract does not violate the prohibitive provisions of the law, there is no question of "black and white contract", and the determination should be made on the basis of whether the contract reflects the true intention of the parties. One view is that although a project does not fall within the scope of compulsory bidding, if the employer voluntarily conducts bidding activities, it should be bound by the Tendering and Bidding Law, and then the "black contract" signed separately in addition to the winning contract for the record should be deemed invalid because it violates the prohibitions of the Tendering and Bidding Law. The second point of view is more accurate, because the legislation of the Tendering and Bidding Law is not only related to the interests of both parties to the construction contract, but also involves the maintenance of competition order and the promotion of fair value. Second, it is conducive to standardizing the construction market. Winning the bid at the lowest price is a widely criticized problem in the construction market, which is rooted in the fact that the participants in the construction market do not take the record contract seriously, and the settlement of the record contract can maintain the authority of bidding, guide the parties to bid rationally, and curb blind behavior.

A project that is not subject to compulsory bidding and is filed by the parties to the project

It is not a compulsory bidding project, and the parties do not voluntarily conduct bidding, but according to the requirements of the local administrative department, the construction contract signed by the contractor and the contractor must be recorded. If the parties sign a contract with different substantive content in addition to the recorded contract and have not filed it, on what contract basis shall the project payment be settled? Because whether or not the record is not a condition for the contract to take effect, although the contract signed by the parties is different from the contract for filing, it is not impossible to use it as a guarantee for the conclusion, and the two contracts are valid at this time. The actual performance of the contract is used as the basis for settlement.

The connotation and extension of the constituent elements of the contract, such as "the winning contract for the record" and "inconsistent substantive content", are the basis and key to determining the validity of the contract.