Briefly describe the concept of engineering counterclaims

Counterclaim means that when one party makes a claim, it refutes, counters, or prevents the other party's claim from being successful or all of the claims are successful. It is generally believed that claims are two-way. Both the owner and the contractor can make claims against the other party, and either party can also refute and counterattack the other party's claims. Such counterclaims and counterclaims are called counterclaims. There are six types of counterclaims, including time delay counterclaims and construction defect claims. In response to one party’s claims, the party making the counterclaim should use the facts as the basis and the contract as the criterion to refute and reject the other party’s unreasonable demands or claims. Unreasonable part.

1. Types of counter claims

1. Counter claims for delay in construction period

During the construction process, the completion date is delayed due to the responsibility of the contractor. If it affects the owner's utilization of the project and brings economic losses to the owner, the owner has the right to claim compensation from the contractor, and the contractor may pay liquidated damages for delayed completion.

2. Claims for construction defects

When the contractor’s construction quality does not meet the requirements of the construction and acceptance specifications, or the equipment and materials used do not comply with the contract provisions, or the warranty period expires If the repair work that should be repaired is not completed before the deadline, the owner has the right to hold the contractor responsible.

3. Claim for insurance premiums that the contractor has not performed

If the contractor fails to insure the items specified in the contract terms and ensure that the insurance is valid, the owner can insure and ensure that the insurance is valid, Necessary insurance premiums paid by the owner may be deducted from amounts payable to the contractor.

4. Claim for excess profits

In the case of a unit price contract, if the actual quantity of work increases much more than the estimated quantity of work, resulting in an increase in the contractor's expected income, then The contract price should be adjusted through discussion between the two parties, and the owner will recover part of the excess profits.

5. Payment claim against the designated subcontractor

When the contractor fails to provide reasonable proof that payment has been made to the designated subcontractor, the owner may claim that the contractor has not paid the designated subcontractor. All amounts due to a nominated subcontractor are payable to that subcontractor and are fully debited from any amounts due to the contractor.

6. Claims if the owner terminates the contract or the contractor unreasonably abandons the project

If the owner reasonably terminates the contractor's contract, or the contractor unreasonably abandons the project, the owner has The contractor has the right to deduct from the contractor the difference between the project payment required to complete all the projects by the new contractor and the unpaid portion of the original contract.

II. Methods of responding to construction claims and counter-claims in construction projects

Due to the particularity and complexity of construction project contracts, claims made by the construction party to the owner can be as follows: Let’s start from several aspects:

1. Gain insights into the possible causes of claims during project implementation, monitor them in a timely manner, and prevent problems before they occur. It is required that during the contract signing process, the contract content must be rigorous, and the geological survey, hydrology, underground pipeline and other information provided to the construction party should be accurate; design changes should be avoided as much as possible; the basis for determining the project cost must be clear, and possible subsequent laws and policies must be considered , interference events caused by changes in specifications; clarify the risks that the construction party should bear.

When making contract changes, it is necessary to evaluate the possibility of causing claims and the extent of the claim amount. Major claims cannot be caused by easy concessions due to errors in predicting the consequences.

2. The contract of each project (each bid section) should be cleared at any time, construction records and supervision logs should be checked frequently, and aspects such as project cost, construction period, quality and safety should be monitored. Pay close attention to any deviations that occur. If the owner's reasons may cause a claim, such as work stoppages or delays due to untimely supply of materials, the owner should also take the initiative to collect evidence to prevent being in a passive position when calculating the claim amount.

3. Correspondence, meeting notes, and meeting minutes must be archived and managed. In particular, reports from the construction party must be treated with great caution. Those who should be answered must be responded to in a timely manner, and those who should not be agreed must not be agreed. Important phone calls should be recorded, and the phone records should be handed over to the other party for signature and confirmation in a timely manner.

4. The granting of authority to approve claims by the supervising engineer or the engineer assigned by the owner should be reasonable, not only to avoid complicated procedures and reduce efficiency, but also to consider the serious consequences that the engineer's personal work deviation may have on the owner. Since the "Building Project Construction Contract" stipulates that after a claim event occurs, the engineer can directly approve the claim or determine that the claim is not established, which means that the engineer's determination is binding on the owner, and the owner can explicitly authorize the engineer to handle the claim. How much authority does the engineer have at the time, for example, what types of claims can the engineer have, and what is the range of the amount of claims that the engineer can have independent disposal rights, etc.

5. Take the initiative to collect evidence. In particular, it is necessary to collect evidence that will support the construction party's claims.

Evidence includes:

(1) Bidding documents, contract texts and attachments;

(2) Documents, visas and change notices, etc.;

(3) Minutes of various talks;

(4) Construction progress plan and actual construction schedule;

(5) Construction site engineering documents;

(6) Project photos;

(7) Meteorological reports;

(8) Construction site handover records;

(9) Building materials and Equipment procurement, ordering and transportation usage records, etc.;

(10) Market conditions records;

(11) Various accounting data;

(12) National Laws, decrees, policy documents, etc.

6. Analyze the causes of claims. Including, judging whether it falls within the risk scope of the construction party; when a claim event occurs due to weather, natural causes, national policies and laws, emergencies, etc., whether the construction party's handling measures are appropriate, and whether there is any expansion caused by the construction party's reasons. loss.

7. Pay attention to the strict timeliness of claims.

The "Construction Project Construction Contract" stipulates the claim procedure in detail. There are four 28-day deadlines per day. What is particularly important is that (3) the engineer shall receive the claim from the construction unit. After submitting the claim report and relevant information, the engineer shall respond within 28 days, or require the construction unit to further supplement the claim reasons and evidence; (4) The engineer fails to respond within 28 days after receiving the claim report and relevant information from the construction unit or If no further requirements are made to the construction unit, the claim will be deemed to have been recognized, and the legal consequences of the presumption of establishment due to failure to reject it in time should be prevented.

8. After receiving a formal claim report, carefully study the claim information submitted by the construction party. First, when the attribution of responsibility is uncertain, objectively analyze the cause of the incident, review the relevant clauses of the contract, study the construction unit's claim evidence, and review its contemporaneous records. Through the analysis of the incident, the supervision engineer will draw the line of responsibility according to the terms of the contract, and if necessary, may require the construction unit to provide further supplementary information. Especially for events that have certain responsibilities for both the construction unit and the construction unit or the supervision engineer, the proportion of contractual responsibilities that each party should bear should be demarcated. Finally, we will review the compensation requirements proposed by the construction unit, eliminate the unreasonable parts, and determine the reasonable claim amount and the number of days for the extension of the construction period calculated by ourselves.

Legal Basis

Article 803 of the "People's Liberation Army and Civil Code" of the People's Republic of China If the contractor provides raw materials, equipment, sites, funds, and technical information in accordance with the agreed time and requirements, the contractor may postpone the project date and has the right to request compensation for losses such as work stoppage and delayed work.