How to collect evidence of delay in construction period

Discussion on construction claims and counterclaims of construction projects: Claims and counterclaims are important parts of project construction contract management. On the basis of analyzing the misunderstanding of current claim and counterclaim, this paper expounds the concepts of claim and counterclaim, and then analyzes the relationship between them and their functions in the construction market. The construction project is influenced by natural conditions such as topography, geology, hydrology and meteorology, and the construction conditions are complex, which may lead to thoughtless engineering design or inconsistent with the actual situation, and may also lead to various defects in the engineering construction contract, which will bring uncertain risks to the performance of the contract and lead to inevitable claims. At present, during the performance of engineering construction contracts in China, the common phenomena are the construction claims made by contractors and the counterclaims made by owners and supervision engineers against the contractors. Construction claims and counterclaims are normal business dealings between owners and contractors during the construction of engineering projects. Its healthy development plays a very important role in cultivating and developing the construction market and promoting the development of the construction industry. However, due to some one-sided understanding and vague understanding of claims and counterclaims, many contractors and construction units have great disputes and differences in this regard. Therefore, it is necessary for us to re-understand and discuss claims and counterclaims, so as to provide a useful reference for all units and departments to safeguard their legitimate rights and interests, and thus promote the healthy development of the construction engineering field. First, the current misunderstanding of claims and counterclaims There are some misunderstandings about the connotation of claims and counterclaims in China. Some people think that claims and counterclaims should be understood and explained from the provisions of the contract law and the conditions of the contract. This view holds that the claim is two-sided, and Party B can claim from Party A, and Party A can also claim from Party B, which is determined by the equal subject status of Party A and Party B. After the interference incident occurred in the project construction, both parties are analyzing the contract. On the one hand, we want to find favorable terms in the contract as a basis to recover the losses caused by the incident as soon as possible. On the other hand, we want to find the unfavorable clauses in the contract, try our best to pass the buck and prevent our possible economic losses. Therefore, the means to recover our loss is called claim, and the means to prevent and reduce the claim of the other party to the contract is called counterclaim. In other words, anything that is actively advocated is called "advocating"; Any act of refuting, modifying or rejecting this "claim" belongs to "counterclaim". Some people even think that the claim is a process in which the contractor punishes Party A's fault according to the rights granted by the contract, so as to make up for the loss and profit from it. What's more, some contractors don't know the word claim at all. Two. The definition of claims and counterclaims in the world is based on the international engineering construction claims specification, and claims and counterclaims are generally defined according to the object of claims. Usually, the request for economic compensation or extension of construction period made by the contractor to the owner for actual losses caused by reasons other than the contractor is called "claim". Claiming the loss caused by the contractor's breach of contract from the owner is called "counterclaim". Moreover, such a request is based on the principle of compensation for actual losses and does not mean punishment. This definition has been recognized and widely used by the international engineering contracting community, and has a specific and clear meaning. Of course, if in a broad sense, the contractor can lodge a claim with the owner, and the owner can refute or reject the contractor's claim, that is, file a counterclaim. Subcontractors can lodge claims with the general contractor, and the general contractor can lodge counterclaims on this claim. The contractor can lodge a claim with the supplier, and the supplier can also refute the claim, that is, file a counterclaim and so on. However, in the practice of construction claims, claims and counterclaims are generally not understood in a broad sense, but the claims made by contractors to the industry are called "claims" according to their specific meanings; The claim made by the owner to the contractor is called "counterclaim", which generally includes two aspects: first, analyze, review and amend the claim made by the contractor, deny its unreasonable demands and accept its reasonable demands. Second, the contractor should be responsible for other defects in the performance of the contract, such as the quality of a certain part of the project can not meet the requirements of the construction technical regulations, or the completion is delayed, and claim losses independently. Third, the relationship between construction project claim and counterclaim in actual operation. Construction claim is often a means for contractors to gain more profits and an effective way to safeguard their own interests. According to the international definitions of claims and counterclaims, we can understand the engineering claims and counterclaims in China's actual work in this way: in construction projects, claims are a normal management business that often happens between contractors, and we are used to calling the claims for damages made by contractors to owners "construction claims", and the main purposes of claims are time limit and expenses. As for the owner's claim against the contractor or the owner's claim against the contractor, it is called "counterclaim" to comment on the unreasonable part of his claim according to the terms of the contract. (1) Claims caused by risks generally include contract risks, political risks and economic risks, such as soaring prices, changes in natural conditions, complicated construction site conditions, changes in various laws and regulations, and currency exchange risks of foreign-related projects. In recent years, due to the continuous expansion of China's construction team, most construction enterprises are seriously short of tasks, and the competition in the construction market is becoming increasingly fierce. Taking advantage of its dominant position, the construction unit transferred the risks that should have been borne by the owner to the contractor through improper or illegal means in the process of bidding and contract signing, resulting in an increase in the proportion of risks borne by the contractor. So this kind of construction claim is often put forward by the contractor, and the differences between the two sides are often great. (2) Claims caused by changes in construction conditions will inevitably undergo new changes, especially design changes. The contractor's quotation is calculated according to the original bidding documents and design drawings. According to the terms of the contract, changing the quantity and nature of any work in the construction drawings, or changing the construction procedure or construction scheme of any part of the project are all changes. If such changes affect the contractor's expenses, the contractor may request a re-evaluation and an extension of the construction period. In actual construction, such claims often cause disputes, mainly because the interests of the owners and contractors are different. (III) Claims caused by excessive changes in engineering quantity In actual construction, the completed engineering quantity often differs from the designed engineering quantity. FIDIC52 Fourth Edition. It is clearly stipulated that when the contract price changes by more than 65,438+05%, it is allowed to adjust the effective contract price. The reason for the change of the contract price is the change of engineering quantity, which mainly causes the following claims: First, the loss caused by the imbalance of the contractor's construction equipment. When the contractor bids, according to the engineering quantity and construction requirements specified in the bidding documents and contract documents, he formulates the construction plan, determines the quantity, type and model of the construction equipment to be equipped, and organizes the ordering and transportation to enter the site accordingly. However, the substantial increase of engineering quantity will inevitably require the increase of new construction machinery or the number of existing machinery, which will lead to the unplanned investment of the contractor and expand the planned cost of the project. If the engineering quantity is greatly reduced, the original equipment will be laid off or abandoned, resulting in the loss of the contractor. At the same time, the change of engineering quantity will also change the quantity of building materials prepared by the contractor, which will lead to claims. Second, due to the change of engineering quantity, the original construction period was changed, which led to the extension of the construction period or the rush to work, causing claims. (IV) Claims for extension and delay of the construction period The claims for extension and delay of the construction period usually include two aspects: one is that the contractor requests to extend the construction period, and the other is that the contractor requests to pay the losses caused by the project delay not caused by the contractor. In engineering construction, due to the influence of weather, hydrology, geology and other factors, the construction period of the project will be extended or delayed. When the contractor's extra expenses are not compensated, it will inevitably lead to claims. (5) The project schedule is disrupted, which affects the realization of the overall target time limit for a project, so that the project cannot be completed on time, and the economic benefits of the owner are affected. When the owner thinks that the delayed completion of the project will bring great economic losses or political influence to himself, or a series of projects are delayed due to the delay of some projects, the owner can take measures to speed up the construction and issue instructions to require the contractor to invest more resources to complete the project, which is inevitable. (VI) Claims caused by other reasons: the owner failed to provide the construction site in time according to the regulations, failed to deliver the construction drawings, equipment and pay the project payment on time, resulting in the contractor's construction team failing to enter the site in time, or the contractor's cash flow was difficult, which affected the project progress and caused claims. Four. Counterclaim Since the contractor wants to make a profit from the claim, the natural owner will do everything possible to reduce the claim and protect his legitimate interests through counterclaim. So if there is a claim, there must be a counterclaim. Counterclaim is usually a means for the owner to deal with the contractor's claim. Claim and counterclaim are the relationship between attack and defense. In the process of contract execution, the contractor must be able to attack and defend, and both attack and defense can be invincible. During the execution of the contract, both parties are looking for opportunities to claim compensation. In the event of interference, both parties shirk their responsibilities and attempt to claim compensation. If you cannot counterclaim effectively, you will also suffer losses. Therefore, claims and counterclaims are equally important. (a) to prevent the other party from filing a claim, the active defense is usually manifested in: 1. In order to prevent yourself from breaking the contract, we must act according to the contract. By strengthening project management, especially contract management, the other party can't find the reason and basis for the claim. The project went smoothly according to the contract, without loss or claim. There was no dispute between the two parties to the contract, and good cooperation results were achieved. Everyone was very happy. 2. Interference incidents in actual projects are often the responsibility of both parties, and many contractors take the preemptive strategy and file claims first. Strive for a favorable position in the claim, disrupt the opponent's position and strive for the initiative. In addition, filing a claim as early as possible can prevent the loss of the opportunity to claim beyond the time limit. (2) Counterclaim In order to avoid and reduce losses, it is necessary to counter claim. For contractors, such claims may come from owners, general (sub-contractors) and suppliers. The most common measures to counter the other party's claim are: 1. Use our claim to counter (balance) the other party's claim, and finally let both parties make concessions or not compensate each other. 2. Refute the other party's claim report, find out the reasons and evidence, and prove that the other party's claim report is inconsistent with the contract, unfounded, inaccurate in calculation, and inconsistent with the facts, so as to shirk or even reduce its liability for compensation, so that it will not suffer or suffer less losses. To sum up, claims and counterclaims are defined according to different claim objects, and their fundamental purpose is to require one party to compensate the other party for the events caused by the other party's responsibility. Claims and counterclaims must be based on the contract, requiring that the events that occurred are true and conclusive, the cost calculation is reasonable and accurate, and the responsibility analysis is clear, which is convenient for both parties to handle and reduce disputes and disputes.