After the acceptance of the construction project, how to deal with the quality problems of the concealed project?

As a special and important part of the construction project, the construction quality of the concealed project is directly related to the safety and durability of the whole project. Since concealed works are not easy to be inspected after construction is completed, their quality management is particularly important. This paper will analyze several typical cases to discuss the key issues such as quality management, division of responsibility, burden of proof and contract performance of concealed projects, and put forward corresponding management measures, in order to provide reference and guidance for relevant parties in the construction industry.

Concealed engineering refers to the construction process, after the completion of certain engineering parts or processes, will be covered by subsequent construction processes, so that it cannot be directly observed or inspected. There are usually three forms of concealed works, covering the main types of concealed works:

1. The middle link of the process is hidden

This usually refers to the fact that during the construction process, after some processes are completed, they will be covered by subsequent processes, so that they cannot be directly observed. For example, in reinforced concrete construction, the arrangement of the reinforcement and the quality of the connection are the key concealed engineering parts before the concrete is poured. In addition, the foundation bed, prism and filter layer in the wharf engineering, as well as the steel structure engineering before anti-corrosion and anti-rust painting, etc., all belong to this category.

2. Concealment of underground engineering parts

This type of concealment usually involves the underground part of a building or structure, which, once covered by backfill material, can no longer be directly inspected or accepted. For example, the foundation engineering of buildings, underground pipe network engineering, track beam engineering, etc., all belong to the concealment of underground engineering parts. For this kind of concealed project, in addition to the quality requirements of the project itself, the backfill material and construction quality are also important considerations.

3. Concealed construction while constructing

Such projects are concealed at the same time as construction, such as underground concrete cast-in-place piles, deep cement mixing piles, gravel vibrating piles in foundation reinforcement, etc. These works are characterized by the fact that construction is carried out simultaneously with concealment, and once completed, direct inspection can no longer be carried out.

Recently, the author represented a construction project construction dispute case, involving the quality of the second type of concealed project mentioned above, and the peculiarity of this case is that the employer had confirmed that the quality of the project was qualified through the completion acceptance procedure, but later found that the green belt and roadbed in the waterfront part of the project were sinking, so the lawsuit was filed.

In practice, the division of responsibilities is often complicated for the quality problems of such concealed projects after the experience has been qualified.

According to Article 798 of the Civil Code, the contractor shall notify the employer to inspect the concealed works before they are concealed. However, in practice, it is not uncommon for the contractor to conceal the concealment after the completion of the concealed project. Similarly, there are also cases where the employer uses it without authorization after the contractor notifies the employer for acceptance. Of course, in both cases, the corresponding liability is generally borne in accordance with the principle of fault. However, when there is a quality problem after passing the acceptance, there is a large controversy, and this article will discuss it through typical cases.

Case Study

Case 1: Construction Contract Dispute between Songyuan Jintanyuan Real Estate Development Co., Ltd. and Guizhou Construction Engineering Group First Construction Engineering Co., Ltd.

Case Index: (2018) Zui Gao Fa Min Zhong No. 38

This case involves the common problem of hidden engineering quality defects in construction projects, as well as the bearing of liability and repair costs. Here's a brief analysis of the case:

Jintanyuan Company and Guizhou Yijian signed the "Construction Project Construction Contract" on December 23, 2010, and Guizhou Yijian entered the construction site in April 2011. On February 6, 2012, Guizhou Yijian served a Notice of Termination of Contract to Jintanyuan Company, resulting in the termination of the contract. On March 29, 2013, the notary office notarized the preservation of the project. On April 15, 2013, the two parties formed the "Supplementary Record of Unfinished Projects", which listed the unfinished projects and partially modified the completed project quantity. On the same day, the two sides signed the "Meeting Minutes" to further confirm that Guizhou Yijian commissioned the testing center to test the completed project. After signing the "Meeting Minutes", Guizhou Yijian withdrew from the construction site within a week. Subsequently, Jintanyuan Company found that there were quality problems in the hidden works such as the pipelines of the disputed project.

The project involved in the case has been completed at the end of 2014 acceptance record, in accordance with the requirements of the administrative department, at the time of the declaration of acceptance and filing, has been submitted to the administrative department construction drawings, engineering technical data, branch (sub-division) project quality acceptance records and other materials, the project involved in the case has completed the completion acceptance of the record, and the acceptance conclusion is qualified.

After identification, there are many quality defects in the project, including insufficient thickness of the negative bending moment protective layer of the floor slab, the fire protection system pipeline is not passable, the position of the fire alarm button box is inconsistent, the switch socket box is not set up or the pipeline is not passed, the fire hydrant is not set up or the pipeline is not passed, etc.

After the trial, the Supreme People's Court held that the pipeline project was a concealed project, and as the construction party, it had the responsibility to ensure that the quality of the project met the requirements of the specification. Due to quality problems, the construction party is at fault. According to the law, the employer is responsible for conducting inspections before concealment of concealed works. The employer shall also bear certain responsibilities for failing to provide evidence of timely inspection. Therefore, the court of first instance, on the grounds that it could not ascertain the cause of the failure of the pipeline, decided that both parties should bear half of the responsibility, which was inaccurate and lacked sufficient factual and legal basis. The court of second instance re-determined the liability, holding that the construction party should bear 90% of the compensation liability, and the remaining 10% should be borne by the employer itself.

This case illustrates that in a construction project, both the contractor and the employer are responsible for the quality of the work, and that both parties may be held liable in the event of a quality problem. At the same time, it also emphasizes the importance of the burden of proof and the discretion of the court in determining liability and compensation. In practice, all parties should strictly abide by the contract and relevant laws and regulations to ensure the quality of the project and avoid the occurrence of such disputes.

Case 2: "Tengchong Company, Yunnan Company, etc. Construction Contract Dispute Case"

Case Index: (2023) Zui Gao Fa Min Shen No. 2237

The Supreme People's Court held that on the issue of the division of responsibility for the unqualified quality of the project involved in the case. The contractor, Huibian Company, violated its contractual obligations by failing to comply with the design specifications, while Golden Eagle Company, the employer, failed to prevent Huibian Company's breach of contract in a timely manner after learning of the problem reported by the supervising unit, Tengteng Company, that the pile foundation length of Huibian Company was insufficient in the construction, nor did it investigate the reasons for the failure to meet the project standards, or required the construction party to take necessary measures to meet the acceptance standards. Because the project is a concealed project and its superstructure has been completed, the opportunity to test and identify the quality of the project is lost, and the reason for the failure cannot be determined. Based on this, both parties are at fault and should bear the corresponding liability for breach of contract. The court of second instance ruled that RGE should bear primary responsibility after comprehensively considering the leading role of RGE in the construction process, as well as the fact that its actions may have caused the cause of the project quality problems and the unclear subject of responsibility, and was not improper.

Case 3: "Shandong Aoqing Real Estate Co., Ltd. and Shenzhen Shenzhen General Decoration Engineering Industry Co., Ltd. Construction Project Construction Contract Dispute Case"

Case Index: (2015) Min Shen Zi No. 2268

The Supreme People's Court held that if the Shenzhen Installation Corporation, as the construction party of the concealed project, claimed that it had completed a specific amount of work and should obtain the corresponding cost, then the Shenzhen Installation Corporation needed to provide sufficient evidence to prove its claim. In construction disputes, appraisal materials usually include, but are not limited to, construction drawings, construction records, engineering change records, on-site photos, contract documents, etc. These materials are essential for the appraisal agency to assess the quantity and cost of the project. After receiving the complete appraisal materials, the appraisal agency can conduct a professional assessment of the workload and cost of the concealed project. If the construction party fails to provide the necessary appraisal materials, the appraisal agency will not be able to conduct an accurate appraisal. In the case that the Shenzhen Installation Corporation failed to provide the necessary appraisal materials, resulting in the inability of the appraisal agency to conduct the appraisal, it was not improper for the original first and second instance judgments to assign the burden of proof to the Shenzhen Installation Corporation for the quantity and cost of the completed works of the concealed project involved in the case.

When handling such cases, the court will usually decide the allocation of the burden of proof and the final judgment based on the specific circumstances of the case, including the evidence provided by the parties, the opinions of the appraisal agency, and the relevant legal provisions. It is very important for the construction party to retain and provide complete construction records and relevant evidence, which not only helps to protect their legitimate rights and interests, but also fulfills the burden of proof stipulated by law.

These three cases together illustrate the legal issues of quality management of concealed projects in construction contracts, especially the disputes over the division of responsibility, the burden of proof and the filing of project acceptance.

Common problems

• 1. Quality problems of concealed projects: The three cases all involve quality problems in the construction process of concealed projects, such as pipeline impassability, quantity disputes, etc.
• 2. Division of Responsibility: In all cases, the division of responsibilities between the contractor and the employer has become the focus of controversy. The contractor needs to prove that its construction complies with the specifications, and the employer needs to prove that it has fulfilled its regulatory responsibilities.
• 3. Burden of proof: The case emphasizes the importance of proof, and both the construction party and the employer need to provide sufficient evidence to support their claims, such as construction records, contract documents, etc.
• 4. Legal consequences: Failure to comply with the contract and construction specifications may lead to legal liability, mainly involving economic liability.

distinguish

• 1. Proportion of liability: In Case 1, the Supreme Court re-determined the liability, with the construction party bearing 90% of the liability and the employer bearing 10%, the employer bearing the main responsibility in Case 2, and the construction party failing to provide the necessary appraisal materials, resulting in the inability to accurately identify the quantity and cost of the project.
• 2. Timing of the discovery of quality problems: In Case 1, the quality problems were discovered after the construction party withdrew from the site, in Case 2, the quality problems were discovered during the construction process but were not dealt with in a timely manner, and in Case 3, the construction party failed to prove the amount of work it had completed.
• 3. Performance of the contract: Problems were discovered after the contract was terminated in Case 1, the employer failed to take effective measures after learning of the construction problems in Case 2, and the construction party claimed to complete a specific quantity of work but failed to provide evidence in Case 3.
• 4. Appraisal process: In Cases 1 and 2, the court commissioned an appraisal agency to conduct a project quality assessment, while in Case 3, the appraisal failed to be carried out because the construction party failed to provide the necessary materials.
• 5. Basis of judgment: In Cases 1 and 2, the court made a judgment based on the appraisal results and contractual obligations, and in Case 3, the court made a judgment based on the failure of the construction party to fulfill the burden of proof.

Through these cases, it can be seen that in construction contract disputes, the quality management, division of responsibility, burden of proof and contract performance are the key factors, and the court will comprehensively consider these factors when making judgments, and determine liability and compensation according to the specific circumstances of the case.

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Suggested measures for quality management of concealed projects

In general, the following measures can be taken for the quality management of concealed works:

• Strict acceptance: Before the concealed project is covered, strict quality inspection and acceptance must be carried out to ensure that the design requirements and construction specifications are met.
• Detailed records: For the construction process, inspection results and acceptance of concealed projects, there should be detailed records and documents for subsequent traceability and proof.
• Notification and inspection: Before the concealed works are covered, the contractor shall notify the employer or the supervision unit to conduct an inspection to ensure that all relevant parties have the opportunity to confirm the quality of the works.
• Quality assurance measures: The contractor shall take necessary quality assurance measures, such as using qualified materials, complying with construction specifications, and conducting regular quality inspections.
• Legal and contractual liability: The contractor should have a clear understanding of its legal and contractual responsibilities in concealed works to ensure that it can assume corresponding responsibilities in the event of quality problems.

Through these measures, the quality problems of concealed projects can be minimized, the interests of the employer and the contractor can be protected, and the safety and reliability of the project can also be guaranteed.

Quality management of concealed works is of paramount importance to both the employer and the contractor. Since concealed works are not easy to be inspected after the construction is completed, if the relevant laws, regulations and standards are not strictly observed during the construction process, it is indeed easy to cause quality problems and disputes in the later stage. Therefore, strict acceptance before the concealment project is concealed is a key step to ensure the quality of the project and avoid future disputes.