There are 19 articles in this chapter, which stipulate the conclusion of the construction project contract, the prohibition of illegal subcontracting and subcontracting, the contents of the construction project contract, the completion acceptance, the payment of the price and other rights and obligations of the employer and the contractor.
Article 269 A construction project contract is a contract in which the contractor carries out the project construction and the developer pays the price.
Construction engineering contracts include engineering survey, design and construction contracts.
[Interpretation] This article is about the definition and basic contents of the construction project contract.
A construction project contract refers to a contract in which the contractor carries out the project construction and the employer pays the price. The object of the construction project contract is the project. The projects here refer to the new construction, expansion, reconstruction and large-scale architectural decoration activities of lines, pipelines and equipment installation projects within the scope of civil engineering and construction industry, mainly including houses, railways, highways, airports, ports, bridges, mines, reservoirs, power stations and communication lines. The main body of the construction project is the employer and the contractor. The employer is generally the construction unit of the construction project, that is, the unit that invested in the construction of the project, and is also usually called the "owner". According to the Interim Provisions on Implementing the Legal Person Responsibility System for Construction Projects issued by the State Planning Commission in April, 1996, large and medium-sized commercial capital construction projects invested by state-owned units must set up project legal persons in the construction stage. A project legal person may establish a limited liability company or a joint stock limited company according to the provisions of the Company Law, and the project legal person shall be responsible for the whole process of project planning, fund raising, construction implementation, production and operation, debt repayment and asset preservation and appreciation. According to this regulation, the project legal person established in accordance with the law is the employer for the commercial project construction invested and constructed by state-owned units. Non-operating engineering construction invested by state-owned construction units shall be undertaken by the construction unit as the employer. In addition, if the construction project is subject to general contracting, the general contractor shall, with the consent of the employer,If part of the project is subcontracted within the scope prescribed by law, the general contractor will become the employer of the subcontracted project. Contractors of construction projects, that is, units engaged in survey, design and construction of construction projects, include units engaged in general contracting of construction projects and units engaged in subcontracting projects.
The definition of construction project contract stipulated in the first paragraph of this article embodies the basic obligations of both parties to the contract, namely the employer and the contractor. The basic obligation of the contractor is to carry out the project construction on schedule according to the quality, including survey, design and construction. The basic obligation of the employer is to pay the price as agreed.
The second paragraph of this article stipulates the main contents of the construction project contract. A project generally includes a series of processes such as survey, design and construction, so a construction project contract usually includes a project survey, design and construction contract.
Survey contract refers to the agreement reached between the employer and the surveyor on the completion of the investigation and study of the geographical and geological conditions of the construction project. The survey work is a highly professional work, so it should generally be completed by specialized geological engineering units. The survey contract is the basis for reflecting and adjusting the relationship between the employer and the entrusted geological engineering unit.
The design contract actually includes two contracts. One is the preliminary design contract, that is, the contract signed by the contractor and the employer for the design of the feasibility data for the project decision-making in the project establishment stage. Second, the construction design contract refers to the agreement reached between the contractor and the employer on the specific construction design.
The construction contract mainly includes two aspects: construction and installation. The construction here refers to the act of building the project. Installation mainly refers to the assembly of lines, pipelines, equipment and other facilities related to engineering.
Article 270 A construction project contract shall be in written form.
[Interpretation] This article is about the contract form of construction projects.
According to the provisions of this article, the rights and obligations of both parties shall be clearly defined in writing in a construction project contract in addition to the agreement of the parties.
Contracts can be divided into oral contracts, written contracts and other ways to conclude contracts according to their ways of conclusion. A contract in which the parties express their will orally is called an oral contract; A contract concluded by the parties in written form is called a written contract. It is simple, rapid and easy to conclude a contract orally, which is a large number of contract forms in real life. For example, the contract relationship between consumers and shop assistants when shopping in the market is a typical oral contract. However, because there is no necessary evidence for oral contracts, once a contract dispute occurs, it is often difficult to prove it, and it is easy to shirk responsibility and wrangle with each other, making it difficult to distinguish responsibility. The written contract has clear written records of the rights and obligations agreed between the parties, which can prompt the parties to correctly perform their contractual obligations in a timely manner. When a contract dispute occurs, it is also convenient to distinguish the responsibilities and solve the dispute correctly and timely. Construction project contracts generally have the characteristics of large amount of contract subject matter, complex contract content and long performance period, so it should be written for the sake of prudence. For this reason, this article specifically stipulates.
According to the provisions of this law, written forms refer to forms that can tangibly express the contents, such as contracts, letters and data messages (including telegrams, telexes, faxes, electronic data interchange and emails). In practice, contracts are generally concluded in the form of contracts for larger projects. Through the contract, the parties specify their respective names and addresses, the name and scope of the project, and clearly stipulate the content, method, time limit, liability for breach of contract and methods for resolving disputes. In a project contract, the contents and methods of contracting shall also be clearly defined. A survey and design contract shall also specify the time limit for submission of basic survey or design data and design documents (including budget estimates), design quality requirements, survey or design fees and other cooperation conditions. The construction contract shall also specify the scope of the project, the construction period, the start and completion time of the intermediate completion project, the project quality, the project cost, the delivery time of technical data, the responsibility for the supply of materials and equipment, the allocation and settlement, the completion acceptance, the quality guarantee period and the mutual cooperation between the two parties. The parties may also choose the relevant model contract text as a reference to conclude a construction project contract.
Article 271 Bidding activities for construction projects shall be conducted in an open, fair and just manner in accordance with the provisions of relevant laws.
[Interpretation] This article is about the requirements of project bidding.
Tendering and bidding is a competitive trading method usually used in the sale of bulk goods or the contracting of construction projects under the conditions of market economy. The so-called tendering and bidding activities of construction projects refer to that the employer of construction projects, as the tenderee, releases relevant information of the proposed project in an appropriate way, such as the contents of the project, main technical conditions, qualification requirements for contractors, etc., but does not indicate the cost of the project. Through these behaviors, it shows that the employer will choose qualified contractors to enter into construction project contracts with them. The activities in which the contractors who are interested in contracting the project put forward their own project quotations and other contracting conditions as bidders, participated in the bidding competition, and after the tenderee reviewed and compared the quotations and other conditions of the bidders, selected the winning bidder and signed a construction project contract with them.
The most remarkable feature of bidding and tendering for construction projects is that it introduces competition mechanism into the contracting and contracting activities of construction projects, and it has obvious advantages compared with the allocation of construction tasks to construction enterprises by administrative means under planned economy conditions or the contracting and contracting of construction projects by "one-on-one" negotiation, which is mainly manifested in the following two points: first, By comprehensively comparing the quotations and other conditions of the bidding competitors, the tenderee selects the contractor with low quotation, strong technical force, reliable quality assurance system and good reputation as the winning bidder, and signs the construction project contract with it, which is obviously conducive to ensuring the project quality, shortening the construction period, reducing the project cost and improving the investment benefit; Second, the tendering and bidding activities are required to be conducted openly in accordance with legal procedures, which is conducive to blocking the "black hole" of corruption and unfair competition behaviors such as bribery in the contracting and contracting activities of construction projects. It is precisely because bidding has obvious advantages and meets the requirements of market competition that it has become the main method that should be vigorously promoted in the contracting and contracting activities of construction projects in China, especially for projects built with state-owned funds. Therefore, in the construction law, it is clearly stipulated that construction projects should be contracted by bidding according to law, and only those that are not suitable for bidding can be directly contracted. Therefore, according to the provisions of the building law and other laws and administrative regulations,If a contract needs to be concluded by means of bidding for a project construction, the parties concerned must adopt the method of bidding. If there are no provisions in the law, the employer may also adopt the method of bidding to contract.
The implementation of public bidding for construction projects generally includes the following main processes:
1. Bid. Tender issuing means that the employer, as the tenderee, issues a tender announcement in accordance with legal procedures and methods, and provides tender documents containing the main technical requirements, main contract terms, standards and methods for bid evaluation, and procedures for bid opening, bid evaluation and bid selection.
2. Bid opening. After the deadline for submission of bids expires, the tenderee shall open the received tenders within the specified time to check their contents, so as to evaluate the contract conditions specified in each tender. The bid opening shall be conducted in public at the time and place specified in the tender documents, usually in the form of a bid opening meeting. All contractors participating in the bidding are eligible to attend the bid opening meeting and supervise the bid opening process. The tenderee shall publicly check the sealing conditions of each tender at the bid opening meeting, open the tenders one by one, publicly sing the bids, read out the names of bidders, bid prices and other main contents specified in each tender, and record the singing bids for inspection. After the bid opening, no one may change the other contents of the tender offer.
3. Bid evaluation. Bid evaluation means that after the bid opening, the tenderee shall evaluate and compare the bids according to the bid evaluation standards and procedures stipulated in the bidding documents, and select the winning bidder among the bidders with corresponding qualifications. The bid evaluation shall objectively and fairly evaluate and compare the bids according to the standards and procedures stipulated in the bidding documents, and no one may change or violate the prescribed standards and procedures for bid evaluation. In practice, the tenderee usually organizes a bid evaluation organization composed of project legal persons, major investors, representatives of bidding agencies and relevant technical, economic and legal experts to make technical evaluation on the effectiveness of each bidder’s tender, the scientificity, rationality and feasibility of the technical scheme provided by the tender, the status of technical force and the effectiveness of quality assurance measures, and make economic evaluation on the rationality of the project quotation and various expenses. On this basis, the bid evaluation report is made and several bidders are recommended to win the bid.
4. calibration. Calibration, also known as award, refers to the activity that the employer finally selects the winning bidder as the project contractor from the bidders. The principle of equal competition and merit-based selection must be observed in the calibration, and the winning bidder should be selected from the candidates recommended by the bid evaluation agency according to the prescribed procedures, and a construction project contract should be concluded with them. It is a common practice in the world that the bidder with the lowest price should be the winning bidder when other conditions such as technology and credit are equal.
According to the provisions of this article, the bidding for construction projects shall be conducted in accordance with the principles of openness, fairness and impartiality. The so-called publicity means that the relevant information of bidding activities should be made public, and the tenderee should publish the bidding information of construction projects through advertisements in the news media or other appropriate forms, and specify the main technical requirements of the bidding project and the qualifications of bidders in the publicly provided bidding documents, so that all qualified contractors can have the opportunity to participate in bidding competition. At the same time, the procedures of bidding and tendering should be open, including the time and place of receiving the bidding documents, the deadline of bidding, the time and place of bid opening, the standards and methods of bid evaluation and calibration, etc., which should be open and transparent for the supervision of all parties, and "black-box operation" is not allowed. The so-called fairness means that the tenderee treats every bid equally, and the bidders must compete by proper means, and must not offer bribes or kickbacks to the bidders and their staff to ensure the equality of competition. The so-called fairness means that the tenderee should strictly follow the open bidding documents and procedures, strictly follow the established bid evaluation standards and calibration, and treat every bidder fairly, and must not show favoritism and neglect.
Article 272 The developer may conclude a construction project contract with the general contractor, or conclude a survey, design and construction contract with the surveyor, designer and constructor respectively. The employer shall not dismember a construction project that should be completed by one contractor into several parts and contract it to several contractors.
The general contractor or the survey, design and construction contractor may, with the consent of the employer, entrust part of his contracted work to a third party. The third party shall be jointly and severally liable to the Employer with the general contractor or the survey, design and construction contractor for the work results it has completed. The contractor shall not subcontract all the construction projects it has contracted to a third party or dismember all the construction projects it has contracted and subcontract them to a third party in the name of subcontracting.
It is forbidden for the contractor to subcontract the project to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting the contracted projects. The construction of the main structure of the construction project must be completed by the contractor himself.
[Interpretation] This article is about the provisions on contracting, contracting and subcontracting of construction projects.
Construction project contracts can be divided into two categories: direct contracting and subcontracting according to the work content contracted by the contractor. Direct contracting means that the employer directly contracts the project to the contractor, including general contracting and single project contracting. Subcontracting means that the general contractor, survey, design and construction contractor can entrust some of their contracted work to a third party with the consent of the employer.
General contracting of construction projects, also known as "turnkey contracting", refers to the general contracting of construction projects, that is, the employer contracts all the tasks of construction projects such as survey, design and construction to a contractor with corresponding general contracting qualifications, who is responsible for all the construction work of the project until the project is completed, and delivers the construction projects that meet the requirements of the employer. General contracting is a widely used contracting method in construction activities at home and abroad, which is conducive to giving full play to the professional advantages of large contractors with strong technical force, rich experience and organizational management ability in engineering construction, comprehensively coordinating various relationships in engineering construction, strengthening unified command and organization management of engineering construction, ensuring engineering quality and progress, and improving investment efficiency. Adopting the general contracting method in the contracting of construction projects has obvious advantages for those construction units that lack specialized technical strength in engineering construction and are difficult to implement specific organization and management of construction projects, and also meets the requirements of socialized large-scale production professional division of labor. Therefore, we should advocate the implementation of general contracting for construction projects, and the employer can contract out all the projects to a general contractor, who will be responsible to the employer for the whole process of project construction. Corresponding to the general contracting mode, it is the contracting of a single task.That is, the employer will contract out different tasks such as survey, design and construction in the construction project to the surveyor, designer and builder respectively, and sign corresponding contract with them. This way of contracting out the contract is conducive to attracting more contractors to participate in the bidding competition of various engineering construction businesses, so that the employer has more choices; It is also beneficial for the employer to directly supervise and manage all links and stages of the construction project, which is beneficial to those contractors who have professional and technical talents in construction activities and have strong organizational and management capabilities in engineering construction.
Whether a construction project is contracted by general contracting or single project contracting can be determined by the employer according to the actual situation. However, no matter how the employer signs the contract with the contractor, it shall abide by the provisions of this article and shall not dismember the construction project, that is, it shall not dismember the construction project that should be completed by one contractor into several parts and contract it to several contractors. This regulation is made in view of the fact that the project is dismembered and contracted out in China’s construction market, which often happens and is harmful. Some contracting units divide the project that should be contracted by one contracting unit as a whole according to its nature and technical connection into several parts, and contract it to several contracting units respectively, which makes the whole project construction lack of due overall coordination in management and technology, often resulting in chaos and unclear responsibilities on the construction site, seriously affecting the quality of the project construction, and it is difficult to find the responsible person if there is a problem. Moreover, from the actual situation, the dismemberment of the contract is often related to the illegal activities of the staff of the contracting unit, such as favoritism and malpractice, and taking kickbacks by using dismemberment of the contract. Therefore, the first paragraph of this article clearly stipulates: "The employer shall not divide the construction project that should be completed by one contractor into several parts and contract it to several contractors." As for how to determine whether a construction project should be completed by a contractor, the relevant authorities in the State Council need to make specific provisions according to the actual situation. Such as the water supply pipeline of a house,The employer should not divide it into several parts and contract it to several contractors. If the installation of water supply pipeline and air conditioning equipment in a building belongs to the same building, the employer can contract them out to different contractors because of their strong professionalism.
The so-called subcontracting of construction projects refers to that after the general contractor, survey contractor, design contractor and construction contractor have contracted the construction projects, they will contract out a certain part or parts of the projects they have contracted to other contractors and sign subcontracting contracts with them. The general contractor, survey, design and construction contractor shall become the employer of the subcontract in the subcontract. General contractors, survey, design and construction contractors who subcontract construction projects shall meet the following conditions: (1) General contractors, survey, design and construction contractors can only subcontract some projects to subcontractors with corresponding qualifications; (2) In order to prevent the general contractor, survey, design and construction contractor from subcontracting the project that should be completed by themselves or subcontracting the project to a third party that the employer does not trust, the subcontracting of the project must be approved by the employer.
There are two different contractual relationships between contract and subcontract in the contract form of combining contract and subcontract. A contract is a contract concluded between the employer and the general contractor or surveyor, designer and constructor. The general contractor, surveyor, designer and constructor shall be fully responsible for the performance of the contract. Even if the general contractor, surveyor, designer and constructor subcontract some construction projects within the scope of the contract to others according to the contract agreement or the consent of the employer, the general contractor, surveyor, designer and constructor shall also be responsible for the subcontracted projects. A subcontract is a contract concluded between the general contractor or the survey, design and construction contractor and the subcontractor. Generally speaking, the subcontractor is only responsible to the general contractor, survey, design and construction contractor for the performance of the subcontract, and is not directly responsible to the employer. However, in order to safeguard the interests of the employer and ensure the quality of the project, this article appropriately increases the responsibility of the subcontractor, that is, the third party (subcontractor) is responsible for the work results it has completed. In case of problems in subcontracted projects, the Employer may require the general contractor, survey, design and construction contractor to bear the responsibilities, or directly require the subcontractor to bear the responsibilities.
The so-called subcontracting refers to the behavior that the contractor of a construction project transfers the contracted construction project to a third person, so that the third person actually becomes the new contractor of the construction project. The fundamental difference between subcontracting and subcontracting lies in: in subcontracting, the original contractor transfers all his projects to others without actually fulfilling his contractual obligations; In subcontracting, the contractor only subcontracts a part or parts of the contracted project to other contractors, and the contractor is still responsible to the employer for the performance of all the obligations stipulated in the contract. According to this law and other laws, it is allowed for the contractor to subcontract some of its projects to others with the consent of the employer, but it is forbidden for the contractor to subcontract. This article clearly stipulates that the contractor shall not subcontract all the construction projects he contracted to a third party or dismember all the construction projects he contracted and subcontract them to a third party in the name of subcontracting. This is because: 1. In practice, subcontracting is very harmful. Some units subcontract their contracted projects to others at a reduced price, and seek illegitimate interests from them, resulting in the phenomenon of "subcontracting at different levels and skinning at different levels". Finally, the actual cost for project construction is greatly reduced, leading to serious Jerry-building; Some construction projects are subcontracted and fall into contracting teams that do not have the corresponding qualifications, leaving serious engineering quality hidden dangers and even causing major quality accidents.2. The contractor subcontracts the contracted project without authorization, which undermines the stability and seriousness of the contractual relationship. In the process of concluding a contract for a construction project, the employer often chooses carefully to conclude a contract with a contractor whom he trusts and has corresponding qualifications. The contractor subcontracts the contracted project to others and changes the contract without authorization, which violates the will of the employer and harms the interests of the employer. This is not allowed by law.
Subcontracting of construction projects is prohibited, and the construction law has the same provisions, which is also a common practice in the world. Many countries have made prohibitive provisions on subcontracting of construction projects. For example, both Japan and South Korea stipulate that, except with the written consent of the employer, the construction industry practitioners shall not subcontract their contracted construction projects to others in any form. Therefore, the prohibition of subcontracting in this article is in line with the actual situation in China and the international practice.
In order to ensure the quality of the project and prevent some contractors from subcontracting in the name of subcontracting after obtaining the project, which will damage the interests of the employer and undermine the order of the construction market, the third paragraph of this article stipulates that contractors are prohibited from subcontracting the project to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting the contracted projects. According to the provisions of this paragraph, the subcontractor of the project must have the corresponding qualifications. According to the relevant laws of our country, the construction surveyors, designers and constructors engaged in construction activities must meet the following qualifications: 1. Having registered capital in line with state regulations; 2. Having professional and technical personnel with legal practice qualifications suitable for the construction activities they are engaged in; 3. Having the necessary technical equipment to engage in relevant construction activities; 4. Other conditions stipulated by laws and administrative regulations. Surveyors, designers and constructors engaged in engineering construction activities are divided into different qualification levels according to their registered capital, professional and technical personnel, technical equipment and completed construction project performance, and can engage in construction activities within the scope permitted by their qualification levels only after passing the qualification examination and obtaining the qualification certificates of corresponding levels. When subcontracting the project, the contractor shall examine whether the subcontractor has the qualifications to contract this part of the project construction. The contractor subcontracts the project to a subcontractor who does not have the corresponding qualifications, and the subcontract is invalid.In order to avoid the problems of unclear responsibilities caused by subcontracting at different levels and the reduction of actual project costs caused by too many intermediate links, according to the provisions of this clause, the subcontractor shall not subcontract the contracted projects, that is, only one subcontract can be implemented for the construction projects. In the case of construction contracting, the main structure of the construction project must be completed by the contractor himself and shall not be subcontracted, that is, if the contractor contracts all the construction tasks of the project, the main structure of the project must be completed by the contractor himself. Even with the consent of the employer, the construction of the main project shall not be subcontracted to a third party. If the contractor subcontracts the construction tasks of the main part of the project to a third party in violation of the provisions of this paragraph, the subcontract is invalid.
Article 273 A major state construction project contract shall be concluded in accordance with the procedures prescribed by the state and the investment plan, feasibility study report and other documents approved by the state.
[Interpretation] This article is about the procedures for concluding contracts for major national construction projects.
Any construction project contract must have a certain basis. To determine the general project, the project should be established first, that is, the relevant competent departments and construction units put forward project proposals, conduct feasibility studies after approval, prepare feasibility study reports, and select the project address. Only after the feasibility study report is approved can the survey and design contract be signed according to the feasibility study report. Only after the survey and design contract is fulfilled can the construction contract be signed according to the approved preliminary design, technical design, construction drawings and general budget. As a construction project contract involves capital construction planning and its subject matter is real estate project, the work accomplished by the contractor is not only immovable, but also has to exist and play its role for a long time, which is related to the national economy and people’s livelihood. Therefore, the state should implement strict supervision and management. Although under the condition of market economy, it is true that construction project contracts are not concluded strictly according to the specific construction plan as before, the diversification of investment channels for capital construction projects cannot completely change the planning of capital construction, and the state still needs to implement planned control over capital construction projects, especially the construction project contracts of major national projects, which should be subject to state planning, management and constraints. Generally speaking, the state does not give special supervision and management to the contract, but for the construction project contract, from the signing of the contract to the performance of the contract, from the investment of funds to the final acceptance of the results,All must be strictly managed and supervised by the state. In order to standardize the construction of major national projects, ensure the realization of national investment plans, ensure quality, avoid waste of resources, ensure investment benefits and reduce investment risks, this article puts forward stricter basis for the conclusion of major national construction projects contracts, that is, major national construction projects contracts should be concluded according to the procedures stipulated by the state and the investment plans and feasibility study reports approved by the state.
The law does not specify which construction projects belong to the state’s major construction projects. In practice, not all projects invested by the state government belong to the state’s major construction projects. Generally, projects that are included in the state’s key investment plans and have a huge investment amount and a particularly long construction period are all major national construction projects, such as the Three Gorges Project. Although some projects are not included in the national key investment plan, the investment amount is not huge, but they have great influence, and they also belong to major national construction projects, such as the National Grand Theatre project. There are also some projects, which are invested by local governments, but have huge investment and wide influence, such as the Asian Games project, which is mainly invested by the Beijing Municipal Government. The investment plan is approved by the state and also belongs to the national major construction projects.
According to the provisions of this article, a major national construction project contract shall be concluded in accordance with the procedures prescribed by the state and the investment plan, feasibility study report and other documents approved by the state. Generally speaking, in practice, major national construction projects should conduct feasibility study in advance, demonstrate and analyze the investment scale and construction benefit of the project, prepare a feasibility study report, and then apply for project approval. After the project is approved, the investment plan will be carried out according to the project and reported to the relevant national planning department for approval. After the investment plan is approved, the relevant construction unit will contract out according to the feasibility study report of the project and the investment plan approved by the state, and conclude a construction project contract with the contractor in accordance with the procedures prescribed by the state. The procedures stipulated by the state here refer to the procedures for the conclusion of major construction projects stipulated by the construction law and other relevant laws and administrative regulations. Contracts for major national construction projects must be awarded by public bidding, and the employer shall, in accordance with legal procedures and methods, issue a tender notice and provide the tender documents containing the main technical requirements, main contract terms, standards and methods for bid evaluation, and procedures for bid opening, evaluation and selection. The bid opening shall be conducted in public at the time and place specified in the tender documents. After the bid opening, the tender documents shall be evaluated and compared in accordance with the bid evaluation standards and procedures stipulated in the tender documents, and the candidate winning list shall be determined. The candidate winning unit must have the corresponding qualifications to build the major project.The Employer shall select the winning bidder among the bidders with the same qualifications. The employer shall conclude a construction project contract with the winning bidder. Major national engineering construction projects generally belong to the national compulsory supervision construction projects, so the employer shall entrust an engineering supervision unit with corresponding qualifications to supervise the engineering construction. The employer shall conclude a written supervision contract with the project supervision unit entrusted by it.
Article 274 The contents of a survey and design contract include terms such as the time limit for submission of relevant basic data and documents (including budget estimates), quality requirements, fees and other conditions for cooperation.
[Interpretation] This article is about the main contents of survey and design contracts.
The investigation here refers to the investigation and study of the geographical conditions of the project by the surveyor, including the measurement of the project and the investigation of the geology and hydrogeology of the project construction site. Design refers to the designer’s design of the engineering structure and the budgetary estimate of the project price. Survey and design contract refers to the agreement that the surveyor and designer complete the survey and design tasks of the project and the employer pays the survey and design fees. The survey and design contract defines the rights and obligations between the employer and the survey and designer. In order to standardize the survey and design contract, this article stipulates the main contents of the survey and design contract.
It is the employer’s obligation to submit the basic data and documents related to survey or design. The basic data of survey or design refers to the basic documents and conditions on which the surveyor and designer conduct survey and design work. The basic data of investigation include the feasibility report, the location and content of the project to be investigated, the technical requirements of investigation and the attached drawings. The basic data of the design include survey data such as the site selection report of the project, raw materials (or approved resource reports), agreement documents on fuel, water, electricity and transportation, and technical data that need to be obtained through scientific research. In order to ensure the smooth progress of the survey and design work, the time limit for submitting relevant basic information should be clearly defined in the contract.
Submitting survey and design documents (including budget estimates) is the basic obligation of survey and design personnel. Survey documents generally include survey data, geological data and hydrological data of project site selection. Survey documents are often a basic data for engineering design, and the delivery of survey documents can affect the progress of design work. Therefore, the parties should specify the delivery period of survey documents in the survey contract. The time limit for design documents refers to the time limit for designers to complete design work and deliver design documents. Design documents mainly include construction design drawings and descriptions, list of materials and equipment, and budgetary estimate of the project. Design documents are the basis of engineering construction, and the project must be carried out according to the design documents, so the delivery period of design documents directly affects the construction period, so the parties should specify the delivery period of design documents in the design contract.
The quality requirements here mainly refer to the standards put forward by the employer for survey and design work. Surveyors and designers shall conduct surveys and designs according to the determined quality requirements, and submit survey and design documents that meet the quality requirements on time. The quality requirements clause of survey and design defines the quality of survey and design results, and is also an important basis for determining the work responsibilities of surveyors and designers.
The expenses here refer to the remuneration paid by the Employer to the surveyor and designer for completing the survey and design work. Paying survey and design fees is the main obligation of the employer in the survey and design contract, so the amount or calculation method of survey and design fees, the payment method, place and time limit of survey and design fees should be clearly defined in the survey and design fee clauses.
Other cooperation conditions refer to the obligations of mutual assistance that both parties should perform in order to ensure the smooth completion of survey and design work. The main cooperation obligation of the employer is to provide necessary working and living conditions for the survey and design personnel when they enter the site to ensure their normal work. The main cooperative obligations of the survey and designer are to cooperate with the construction of the project, make design disclosure, solve relevant design problems in the construction, be responsible for design changes and budget revision, and participate in the test run assessment and project acceptance. For large and medium-sized industrial projects and complex civil projects, we should send on-site design and participate in the acceptance of concealed projects.
Of course, a survey and design contract not only includes these terms, such as the name and domicile of the parties, the place and method of performance, the scope and progress of survey and design work, the liability for breach of contract, the method of dispute settlement, etc., but also the terms that a survey and design contract should have. In addition, according to the nature and specific circumstances of the contract, the parties can also determine other necessary terms through consultation. The contents stipulated in this article are suggestive, and only general provisions are made according to the nature of the survey and design contract. If the survey and design contract agreed by the parties does not contain the above contents, the contract will not be invalid.
Article 275 The contents of a construction contract include the scope of the project, the construction period, the start and completion time of the intermediate project, the project quality, the project cost, the delivery time of technical data, the responsibility for the supply of materials and equipment, the allocation and settlement, the completion acceptance, the scope and period of quality warranty, and the mutual cooperation between the two parties.
[Interpretation] This article is about the main contents of the construction contract.
Construction mainly refers to the construction and installation of the project. A construction contract refers to a contract in which the builder completes the construction and installation of a project, and the employer accepts the project and pays the price after acceptance. In order to standardize the construction contract, according to the general characteristics of engineering construction, this article stipulates some main contents in the construction contract, namely, the scope of the project, the construction period, the start and completion time of the intermediate project, the project quality, the project cost, the delivery time of technical data, the responsibility of material and equipment supply, the allocation and settlement, the completion acceptance, the quality guarantee period, and the mutual cooperation between the two parties.
The scope of the project refers to the battery limit of the construction, which is the work scope of the constructor for the construction. The scope of the project is a necessary clause in the construction contract.
Construction period refers to the time limit for the builder to complete the construction task. According to the different nature of each project, the required construction period is also different. Whether the construction period can be reasonably determined will often affect the quality of the project. In practice, some employers often require shortening the construction period for various reasons. In order to catch up with the progress, builders have to cut corners and rush to construct, resulting in serious engineering quality problems. Therefore, in order to ensure the quality of the project, both parties should determine a reasonable construction period in the construction contract.
Intermediate completion project refers to the phased project in the construction process. In order to ensure the handover of all stages of the project and the smooth completion of the project construction, the parties concerned shall specify the commencement and handover time of the intermediate handover project.
Engineering quality refers to the grade requirements of the project and is the core content of the construction contract. Engineering quality is often determined by design drawings, construction specifications and construction technical standards. The engineering quality clause is the basis for defining the construction requirements of the constructor and determining the responsibilities of the constructor, and is a necessary clause in the construction contract. The quality of the project must meet the requirements of the relevant national safety standards for construction projects, and the Employer shall not, for any reason, require the builder to violate the laws, administrative regulations, quality and safety standards of the construction project and reduce the quality of the project.
Project cost refers to the cost required for the construction of the project, including materials cost, construction cost and other expenses. The parties shall reasonably determine the project cost according to the project quality requirements and the project budget. In practice, in order to get more benefits, some employers often lower the project cost, and in order to make profits, builders have to cut corners and shoddy, which will inevitably lead to unqualified project quality and even serious project quality accidents. Therefore, in order to ensure the project quality, both parties should reasonably determine the project cost.
Technical data mainly refers to the survey, design documents and other basic data necessary for the construction by the constructor. The timely delivery of technical data often affects the construction progress, so the parties should specify the delivery time of technical data in the construction contract.
Material and equipment supply responsibility refers to which party provides the raw materials and equipment necessary for engineering construction. Materials generally include cement, bricks and stones, steel bars, wood, glass and other building materials and components. Equipment generally includes water supply, power supply pipelines and equipment. Fire fighting facilities, air conditioning equipment, etc. In practice, some are provided by the employer or purchased by the builder. The responsibility for the supply of materials and equipment shall be clearly stipulated by both parties in the contract. If it is stipulated in the contract that the contractor (builder) is responsible for purchasing building materials, components and equipment, it is not only the obligation that the builder should perform, but also the right that the builder should enjoy. The Employer has the right to inspect the materials and equipment provided by the constructor. If the materials are found to be unqualified, it has the right to require the constructor to replace or supplement them. However, the Employer shall not take advantage of its favorable contractual position to designate the builder to purchase the building materials, components or equipment designated by him, including not requiring the builder to purchase the building materials, components or equipment from the manufacturers or suppliers designated by him. Because the behavior of appointing suppliers by the employer will easily lead to corruption between the employer and suppliers, in addition, under the condition of fixed construction cost, the employer will appoint the builder to buy expensive building materials, components or equipment, which will also harm the interests of the builder.
Appropriation refers to the appropriation of project funds; Settlement refers to the calculation of the actual cost of the project and the difference between it and the allocated project funds after the project is handed over. Appropriation and settlement terms are the basis for the builder to request the employer to pay the project payment and remuneration. Generally speaking, except for the "turnkey project", the builder is only responsible for the construction work such as construction and installation, and the employer provides the funds needed for the progress of the project to ensure the smooth progress of the construction. In reality, the employer often takes advantage of his favorable position in the contract and asks the builder to make advances for construction. After the builder advances to complete the construction task, the employer often fails to settle the account in time, delaying the payment of the project and the money advanced by the builder, which is the main reason for the phenomenon of default in the construction market at present, so the parties may not stipulate the advance construction in the contract.
Completion acceptance is a necessary procedure before the project is delivered and used, and it is also the premise for the employer to pay the price. The terms of completion acceptance generally include the scope and content of acceptance, the standards and basis of acceptance, the composition of acceptance personnel, the method and date of acceptance, etc. After the completion of the construction project, the employer shall make timely acceptance according to the construction drawings and specifications, the construction acceptance specifications and quality inspection standards issued by the state.
The warranty scope of construction projects shall include foundation engineering, main structure engineering, roofing waterproof engineering and other projects, as well as installation engineering of electrical pipelines, water supply and drainage pipelines, heating and cooling engineering and other projects. Quality guarantee period refers to the normal use period of all parts of the project, which is also called quality guarantee period in practice. The quality guarantee period shall be suitable for the nature of the project, and the parties concerned shall determine the quality guarantee period according to the principle of ensuring the normal use of the project within a reasonable service life and safeguarding the legitimate rights and interests of users, but it shall not be less than the minimum guarantee period stipulated by the state.
The terms of mutual cooperation between the two parties generally include the preparatory work of both parties before construction, the builder’s timely notice of commencement, construction progress report, and necessary assistance to the supervision and inspection of the employer. The cooperation between the two parties is an important part of the construction process and an important guarantee for the smooth construction of the project.
Article 276 Where supervision is carried out on a construction project, the employer shall conclude an entrusted supervision contract with the supervisor in written form. The rights, obligations and legal liabilities of the employer and the supervisor shall be in accordance with the provisions of the entrustment contract of this Law and other relevant laws and administrative regulations.
[Interpretation] This article is about the regulation of construction project supervision.
The term "construction project supervision" as mentioned in this article refers to a special activity in which a project supervision unit with legal qualifications, entrusted by the employer and in accordance with laws, administrative regulations, relevant technical standards for construction projects, design documents and construction project contracts, supervises the construction process of the contractor on behalf of the employer in terms of construction quality, construction period and use of construction funds. As the employer of the construction project, it is necessary to supervise the contractor’s construction activities in order to obtain good investment benefits, ensure the quality of the project and control the construction period reasonably. However, most employers are not good at the organization and technical supervision of engineering construction, and a professional engineering supervision unit composed of personnel with professional knowledge and practical experience in engineering construction has great advantages in safeguarding the interests of the employer, coordinating the relationship between the employer and the contractor, ensuring the engineering quality and standardizing the construction market order by accepting the entrustment of the employer. The supervision system of construction projects has a long history of development in the world. Western developed countries have formed a complete project supervision system. It can be said that construction project supervision has become an international practice in the construction field. With the development of reform and opening up, China has also implemented supervision system in engineering construction.
Construction project supervision is a measure taken by the employer of a construction project in order to ensure the quality of the project, control the project cost and construction period, and safeguard his own interests. Therefore, in principle, it is up to the employer to decide whether to supervise the construction project. However, for the construction projects with state financial funds or other public funds, in order to strengthen the supervision of project construction, ensure investment benefits and safeguard national interests, the state has stipulated the scope of construction projects subject to compulsory supervision. For the project subject to compulsory supervision, the employer must entrust the project supervision unit to carry out supervision according to law, and for other construction projects, it is up to the employer to decide whether to carry out project supervision. Where project supervision is required, the Employer shall entrust a project supervisor with corresponding qualifications to carry out supervision. The employer and the project supervisor entrusted by it shall conclude a written supervision contract, which is the basis for the project supervisor to supervise the project construction in the supervision contract. The relationship between the employer and the project supervisor is a contractual relationship between equal subjects in nature. Therefore, the relationship between the rights and obligations of the employer and the supervisor and their legal responsibilities shall be in accordance with the relevant provisions of this law, the construction law and other laws and administrative regulations.
Before the implementation of project supervision, the employer shall notify the contractor of the supervised construction project in writing of the name, qualification grade, supervision personnel, supervision content and supervision authority of the entrusted supervisor. The construction project supervisor shall, in accordance with laws, administrative regulations and relevant technical standards, design documents and construction project contracts, supervise the construction of the project on behalf of the employer in terms of the quality of the project construction, the construction period and the use of construction funds. If the engineering supervisor finds that the engineering design does not meet the quality standards of the construction project or the quality requirements agreed in the contract, he shall report to the employer and ask the designer to correct it; If the project supervisor thinks that the project construction does not meet the engineering design requirements, construction technical standards and contract stipulations, he has the right to ask the builder to correct it. In the process of supervision, the project supervisor shall abide by the objective and fair practice standards and shall not collude with the contractor to seek illegal interests for the contractor.
If the project supervisor fails to perform the supervision obligations as agreed in the entrusted supervision contract, fails to inspect the projects that should be supervised or fails to inspect in accordance with the requirements and inspection methods stipulated in laws, administrative regulations and relevant technical standards, design documents and construction project contracts, thus causing losses to the employer, he shall bear the corresponding liability for compensation. For example, unqualified engineering construction quality is usually related to both the contractor’s failure to carry out the construction as required and the supervisor’s failure to perform the supervision obligations as agreed in the contract. In this case, both the contractor and the supervisor shall bear their respective liabilities for compensation. As for how to determine the supervisor’s corresponding liability for compensation, it shall be determined by the people’s court or arbitration institution. If the project supervisor colludes with the contractor to seek illegal interests for the contractor and cause losses to the employer, he shall be jointly and severally liable for compensation with the contractor.
Article 277 The developer may inspect the progress and quality of the work at any time without interfering with the normal operation of the contractor.
[Interpretation] This article is about the employer’s inspection right.
In order to improve the construction level of the project, ensure the construction progress and quality, give full play to the investment benefit, guarantee the implementation of the construction project contract, and protect the interests of the employer, this article stipulates that the employer may inspect the progress and quality of the project operation at any time.
The employer’s inspection of the project operation is generally conducted in two ways. One is to appoint specific management personnel as site representatives. After the Employer appoints the site representative, it shall notify the Contractor in time. The accredited site representative is responsible for supervising and inspecting the progress and quality of the project, handling the acceptance procedures of the intermediate completed project and other matters that should be solved by the Employer. The other is that the employer entrusts the supervisor to carry out the inspection in the process of project construction. The employer shall entrust the supervisor to supervise the project that is subject to compulsory supervision as stipulated by the state. In addition, the employer can also voluntarily entrust the supervisor to supervise the project. The supervisor shall be a supervision company, a supervision firm and an engineering design, scientific research and engineering construction consulting company with corresponding engineering supervision qualification certificates. If the employer entrusts supervision, it shall conclude a written contract with the supervisor. Before the implementation of project supervision, the employer shall notify the contractor of the supervised project in writing of the entrusted supervision unit, supervision content and supervision authority. The supervisor shall, in accordance with laws, administrative regulations and relevant technical standards, design documents and construction project contract, supervise the contractor’s construction work on behalf of the employer in terms of construction quality, construction period and use of construction funds.
According to the provisions of this article, the Employer may inspect the progress and quality of the project operation at any time. If the site representative and supervisor find that the engineering design does not meet the quality requirements of the construction project during the inspection, they shall report to the employer and ask the designer to correct it. If it is found that the construction of the project does not meet the engineering design requirements, construction technical standards and contract stipulations, the site representative and supervisor have the right to ask the contractor to correct it. The contractor shall accept the inspection of the Employer, provide convenience and assistance for the work of the site representative and supervisor, and provide the Employer with monthly operation plan, monthly construction statistics report, construction progress report, engineering accident report and other documents in time at the request of the Employer. If the contractor’s survey, design, construction and other work do not meet the requirements of engineering quality, when the employer or site representative or supervisor puts forward a request for correction, the contractor shall immediately correct it and shall not refuse.
The employer has the right to inspect the contractor’s engineering operations, but on the other hand, the employer’s inspection behavior should be reasonable, so as not to hinder the normal operation of the contractor. This is also a reasonable restriction on the inspection right of the employer from the perspective of treating both parties equally and safeguarding the legitimate rights and interests of the contractor. Therefore, this article stipulates the premise that "the employer does not interfere with the normal operation of the contractor". If the contractor can’t carry out normal operation due to the improper behavior of the employer or the site representative or supervisor, the contractor has the right to ask for an extension of the construction period, which causes the contractor to stop work, rework, slowdown and other losses, and has the right to ask the employer to bear the liability for damages.
Article 278 Before concealed works are concealed, the contractor shall notify the employer to inspect them. If the Employer fails to make timely inspection, the Contractor may postpone the project date, and has the right to claim compensation for losses such as shutdown and slowdown.
[Interpretation] This article is about concealed works.
Concealed works refer to foundations and electrical pipelines. Water supply and heating pipelines and other projects that need to be covered and concealed. Due to the concealed works, if quality problems occur after concealment, they have to be covered and concealed again, which will cause great losses such as rework. In order to avoid the waste of resources and the losses of both parties, and ensure the quality of the project and the smooth completion of the project, this article stipulates that the contractor shall notify the employer to check before the concealed works are concealed, and the concealed works can only be carried out if the employer passes the inspection. In practice, when the project has the conditions of covering and concealing, the contractor shall first conduct self-inspection. After passing the self-inspection, he shall promptly notify the employer or the site representative stationed by the employer to check the conditions of the concealed project and participate in the operation of the concealed project before the concealed project is concealed. The notice includes the contractor’s self-inspection records, hidden contents, inspection time and place. After receiving the notice, the Employer or its accredited site representative shall arrive at the concealed site within the required time, and inspect the conditions of the concealed works. If the inspection is qualified, the Employer or its accredited site representative shall sign the inspection record, and the contractor can carry out the concealed construction only after the inspection is qualified. If the Employer finds that the concealed engineering conditions are unqualified, it has the right to require the Contractor to improve the engineering conditions within a certain period. The concealed works meet the requirements of the specification, and after the inspection by the Employer, the Employer or its representative stationed at the site refuses to sign the inspection record after the inspection.In practice, it can be considered that the employer has approved and the contractor can carry out concealed engineering construction.
If the employer fails to inspect the concealed engineering conditions on schedule after receiving the notice, the contractor shall urge the employer to inspect within a reasonable period of time. Because the employer does not carry out the inspection, the contractor cannot carry out the concealed construction, so if the contractor notifies the employer to carry out the inspection and the employer fails to carry out the inspection in time, the contractor has the right to suspend the construction. The contractor may postpone the construction period and require the employer to compensate for the losses caused by the shutdown, slowdown, backlog of materials and components.
If the contractor carries out concealed works without notifying the Employer for inspection, the Employer shall have the right to ask for inspection of the concealed works afterwards, and the contractor shall strip the exposed works as required, and re-conceal them after inspection or conceal them after repair. If the concealed works do not meet the requirements after inspection, the contractor shall rework and re-conceal. In this case, the expenses incurred in inspecting the concealed works, such as inspection expenses, rework expenses, material expenses, etc., shall be borne by the contractor, and the contractor shall also bear the liability for breach of contract due to the delay of the construction period.
Article 279 After the completion of a construction project, the developer shall make timely acceptance according to the construction drawings and specifications, the construction acceptance specifications and quality inspection standards issued by the state. Upon acceptance, the Employer shall pay the price as agreed and take over the construction project.
After the completion of the construction project is qualified, it can be delivered for use; Without acceptance or unqualified acceptance, it shall not be delivered for use.
[Interpretation] This article is about the provisions of the completion inspection and acceptance.
The completion acceptance of a construction project means that when the construction project has completed all tasks according to the design requirements and is ready to be delivered to the employer for use, the employer or the relevant competent department shall, in accordance with the provisions of the state on the completion acceptance system of the construction project, check and assess whether the project meets the design requirements and project quality standards. The completion acceptance of the construction project is the last procedure in the whole process of the project construction and the last important link to control the project quality.
In practice, after the completion of a construction project, the contractor shall provide complete completion data and completion acceptance report to the employer in accordance with the relevant provisions of the national project completion acceptance, and submit the completion drawings to the employer according to the date and number of copies agreed in the contract. The completion date shall be the date when the contractor submits the completion acceptance report, and if it needs to be modified to meet the completion requirements, it shall be the date when the contractor submits the repair and reconstruction to the Employer for acceptance.
After receiving the completion acceptance report, the Employer shall timely organize relevant departments to accept the project according to the construction drawings and specifications, the construction acceptance specifications and quality inspection standards issued by the state. The main contents of acceptance are. First, whether the project meets the prescribed quality standards for construction projects. The quality standards of construction projects include mandatory national standards and industrial standards formulated in accordance with the relevant provisions of laws and administrative regulations to ensure the quality and safety of construction projects, construction acceptance specifications issued by the state, special quality requirements for this construction project agreed in the construction project contract, and specific indicators and technical requirements on project quality put forward in engineering design documents, construction drawings and specifications to reflect the quality standards stipulated by laws and administrative regulations and the quality requirements agreed in the construction project contract. Second, whether the contractor has provided complete engineering technical and economic data. The engineering technical and economic data here should generally include the construction project contract, the approval documents of the construction land, the design drawings of the project and other relevant design documents, the factory inspection certificates and entry inspection reports of the main construction materials, building components and equipment used in the project; Report on application for completion acceptance and technical files related to engineering construction, etc. Third, whether the contractor has a construction project quality inspection certificate. After the project is completed and put into use, the contractor shall undertake the warranty responsibility for the quality of the construction project under construction within a certain period of time.So as to safeguard the legitimate rights and interests of users. Therefore, the contractor shall provide the quality warranty certificate of the construction project in accordance with the regulations, as a written certificate of its commitment to the user to undertake the quality warranty responsibility. Fourth, whether the project meets other completion conditions stipulated by the state. For example, according to the regulations of the administrative department of construction in the State Council, the comprehensive acceptance of the completion of urban residential quarters should also ensure that all individual projects such as residential and public supporting facilities and municipal public infrastructure are qualified and the acceptance materials are complete; The plane position, facade modeling and decorative color of various buildings meet the approved planning and design requirements; Construction tools, temporary works, building residual soil, and remaining components are all removed and transported away, so that the site can be cleared and leveled; Whether the greening requirements have been completed according to the greening design, and the trees are alive and the grass is green.
After acceptance, the Employer shall make approval or propose amendments in time. The contractor shall carry out repair or reconstruction according to the modification opinions put forward by the employer, and bear the cost of repair or reconstruction caused by its own reasons. In order to prevent the employer from delaying the acceptance for delaying the payment of the project funds, in practice, after receiving the completion acceptance report sent by the contractor, the employer fails to organize the acceptance without justifiable reasons, or within a reasonable period after the acceptance, it is deemed that the completion acceptance report has been approved, and the contractor may require the employer to go through the settlement procedures and pay the project funds. If the Employer fails to accept the project according to the date agreed in the contract, it shall bear the storage fee from the day after the last day of the contract period.
After the completion acceptance, the employer shall pay the price as agreed. In engineering construction practice, after the completion report is approved, the contractor shall submit a settlement report to the employer in accordance with the relevant provisions of the state or the time and method agreed in the contract, and handle the completion settlement. After receiving the settlement report, the Employer shall promptly give approval or propose amendments, send the appropriation notice to the handling bank to pay the project payment within the time stipulated in the contract, and send a copy to the Contractor. The contractor shall deliver the completed project to the Employer after receiving the project payment, and the Employer shall accept the project. In reality, in order to delay the payment of project funds, some employers delay the project settlement after acceptance. In practice, if the employer delays the settlement after receiving the completion report without justifiable reasons, it shall pay the contractor the interest of the project payment according to the highest interest rate of the construction enterprise’s loan to the bank for the same period, and bear other liabilities for breach of contract.
The construction project must be completed and accepted before it can be delivered; Construction projects that have not passed the completion acceptance or are determined to be unqualified after the completion acceptance shall not be delivered for use. If the employer uses the project without authorization before the completion inspection and acceptance, the employer shall be responsible for the quality problems.
Article 280 Where the quality of survey and design does not meet the requirements, or the survey and design documents are not submitted in time to delay the construction period, thus causing losses to the employer, the survey and design personnel shall continue to improve the survey and design, reduce or waive the survey and design fees, and compensate for the losses.
[Interpretation] This article is about the survey and designer’s responsibility for survey and design quality.
The survey of construction projects is responsible for providing geological data for the project construction. The surveyors of construction projects should carry out engineering survey, engineering geology and hydrogeology survey in accordance with the existing standards, norms, procedures and technical regulations, and submit survey results that meet the quality requirements in accordance with the schedule stipulated in the contract. The design of the construction project directly provides the technical basis for the project construction. The designer of a construction project shall put forward survey technical requirements and carry out design according to the design technical and economic agreement documents, design standards, technical specifications, regulations and quotas, and submit design documents (including budget documents and list of materials and equipment) that meet the quality requirements according to the schedule agreed in the contract.
The quality of survey and design is the basis of determining the quality of the whole construction project. If there are problems in the quality of survey and design, the quality of the whole construction project will not be guaranteed, so the survey and design of the project must meet the quality requirements. According to the provisions of this law and other relevant laws, the surveyors and designers of construction projects must be responsible for the quality of their survey and design, and the survey and design documents submitted by them shall meet the following requirements:
1. Comply with relevant laws and administrative regulations. Compliance with laws and administrative regulations here includes not only compliance with the provisions of this law, but also compliance with the provisions of the building law, urban planning law, land management law, environmental protection law and other relevant laws and administrative regulations.
2 in line with the quality and safety standards of construction projects. The quality and safety standards of construction projects here refer to the national standards and industry standards formulated in accordance with the standardization law and relevant administrative regulations to ensure the quality and safety of construction projects. The standardization law stipulates that standards should be formulated for technical requirements related to the safety of construction projects; At the same time, it is stipulated that national standards should be formulated for technical requirements that need to be unified nationwide. National standards shall be formulated by the administrative department of standardization of the State Council. Industry standards may be formulated for technical requirements that need to be unified within a certain industry in the country without national standards. National standards and industry standards are divided into mandatory standards and recommended standards. The standards for protecting human health and personal and property safety and the standards for compulsory execution stipulated by laws and administrative regulations are mandatory standards. Mandatory standards must be implemented. The national standards on the safety of construction projects are related to the protection of personal and property safety and are mandatory standards. The survey and design of the surveyor and designer must meet the requirements of the relevant national safety standards for construction projects and ensure the quality of their survey and design.
3. Conform to the technical specifications for survey and design of construction projects. Technical specifications for survey and design of construction projects are usually formulated and published in the form of standards. The survey and designer must comply with the mandatory standards for the survey and design specifications of construction projects. The survey documents of a construction project shall reflect the geological, topographical and hydrogeological conditions of the project, conform to the norms and regulations, and ensure that the survey scheme is reasonable, the evaluation is accurate and the data is reliable. The depth of the design documents of the construction project shall meet the technical requirements of the corresponding design stage, the construction drawings shall be matched, the details shall be clearly explained, and the annotation shall be clear and complete.
4. Comply with the contract. The survey and design documents shall also meet the special quality requirements stipulated in the survey and design contract on the premise of complying with the provisions of laws and administrative regulations and relevant quality and safety standards.
If the survey and design documents submitted by the surveyors and designers do not meet the above requirements, according to the provisions of this article, the Employer may request the surveyors and designers to bear the following liabilities for breach of contract: continue to improve the survey and design, reduce or waive the survey and design fees, and compensate for losses. It should be pointed out that if the survey and design quality is only slightly defective, the Employer may request the surveyor and designer to continue to improve the survey and design; if the surveyor and designer are not capable of completing the survey and design work that meets the requirements or the submitted survey and design quality is seriously not in conformity with the agreement, the Employer may terminate the contract and entrust other surveyors and designers to complete the survey and design work. If the survey and design do not conform to the agreement and cause engineering quality problems, the surveyor and designer shall bear the corresponding liability for compensation.
If the surveyor or designer fails to submit the survey and design documents within the time limit agreed in the contract, the Employer may urge the surveyor or designer to submit the survey and design documents as soon as possible. If the delay in the survey and design documents causes losses to the Employer, the Employer may request the surveyor or designer to compensate for the losses. If the surveyor or designer fails to submit the survey and design documents within a reasonable period after the reminder, which seriously affects the progress of the project, the employer may terminate the contract and entrust other surveyors and designers to complete the survey and design work.
Article 281 Where the quality of a construction project is not in conformity with the contract due to the builder’s reasons, the developer has the right to require the builder to repair, rework or rebuild it free of charge within a reasonable period of time. If the delivery is delayed after repair, rework or reconstruction, the constructor shall bear the liability for breach of contract.
[Interpretation] This article is about the provisions of the constructor’s responsibility for the quality of construction projects.
The construction of a construction project refers to the construction of a construction project entity through construction work according to the requirements of the design documents and construction drawings of the project. Under the condition that there is no problem in the quality of construction survey and design, the quality of the whole construction project ultimately depends on the construction quality. The construction quality mentioned here includes the quality of civil engineering in all kinds of projects, as well as the installation quality of supporting lines, pipelines and equipment. According to the provisions of this article, the builder of a construction project is responsible for the construction quality of the project. In reality, many quality problems of construction projects are related to the construction of construction projects. Small construction problems, such as roof leakage, wall cracking and pipeline blockage, bring great inconvenience to users; Big quality problems will lead to vicious accidents of personal injury and heavy property losses. Therefore, the builder of a construction project must be responsible for the safety of the state and people’s property, carry out the construction in strict accordance with the engineering design documents and technical standards, strictly control the quality, and do a good job in the quality control and management of the project construction.
In order to ensure the construction quality of the project, the builder of the construction project must strictly follow the engineering design drawings and construction technical standards, and shall not cut corners. Engineering design drawings are the final results of the design work made by the construction design unit according to the requirements of engineering functions and quality, among which the construction drawings are detailed drawings and descriptions of the size, layout, materials selection, structure, interrelationships, construction and installation quality requirements of buildings, equipment, pipelines and other engineering objects of construction projects, and are the direct basis for guiding construction. All construction activities of construction projects, including civil engineering construction, water supply and drainage system construction, heating and heating system construction, etc., must be carried out in accordance with the requirements of the corresponding construction drawings. In addition to strictly following the engineering design drawings, the builder of a construction project must also carry out the construction in accordance with the requirements of technical standards for construction projects. Construction technical standards are the technical basis for construction workers to carry out every construction operation, including the provisions on various construction preparations, construction operation process and quality requirements to be achieved. Judging from the reality, the behavior of cutting corners in engineering construction is a common fault that causes the quality of construction projects and an important reason for major quality accidents. The so-called "stealing work" refers to the act of reducing the workload without following the construction process specified in the construction technical standards. The so-called "material reduction"It refers to the act of reducing the quantity and quality of building materials without authorization in violation of the provisions of design documents and construction technical standards in engineering construction. Therefore, the builder shall not cut corners in the construction except in strict accordance with the engineering design drawings and construction technical standards.
All the quality problems caused by construction should be borne by the constructor. These responsibilities include civil liabilities such as repairing, reworking or rebuilding the project with quality problems and paying compensation for losses; The administrative responsibility of the relevant administrative organs to give administrative punishment to illegal builders according to law; And those who cause major quality accidents and constitute a crime shall be investigated for criminal responsibility by judicial organs in accordance with the provisions of the Criminal Law. This article stipulates the civil liability that the constructor shall bear because the construction quality does not conform to the agreement. If the quality of the project does not meet the agreed requirements due to the builder’s reasons, the employer may request the builder to repair, rework or rebuild the project for free within a reasonable period of time to meet the agreed quality requirements. If the delivery of the project is delayed after repair, rework or reconstruction, the constructor shall bear the liability for breach of contract for overdue delivery. The liability for breach of contract here includes compensation for the losses suffered by the employer due to overdue delivery, payment of liquidated damages to the employer according to the agreement, reduction of the price, execution of deposit penalty, etc. The Employer may, according to the degree of breach of contract and loss of the constructor, reasonably choose to request the constructor to undertake the above-mentioned liabilities for breach of contract.
Article 281 If the construction project causes personal injury or property damage within the reasonable use period due to the contractor’s reasons, the contractor shall be liable for damages.
[Interpretation] This article is about the contractor’s responsibility for quality assurance within the reasonable use period of the construction project.
According to the provisions of this chapter, the contractor is responsible for the quality of the whole project, and of course should also be responsible for the quality and safety of the construction project during its reasonable use. According to the provisions of this article, the contractor shall meet the following conditions to bear the liability for damages:
1. The personal and property damage caused by the construction project due to the contractor. The contractor of a construction project shall earnestly fulfill the obligation of project quality assurance in accordance with the provisions of the law. The surveyor of a construction project shall provide accurate relevant engineering geological data for the construction project; The designer of a construction project shall carry out the design in accordance with the relevant laws, regulations and design specifications to ensure the quality and safety of the project, and ensure the safety and reliability of the design of the construction project; The builder of a construction project must carry out the construction in strict accordance with the engineering design and construction technical standards, and shall not use unqualified building materials, and shall not have any behavior of cutting corners. If any party fails to perform the legal quality assurance obligations, resulting in the quality and safety problems of the project, the contractor shall bear legal responsibility. If personal and property damage is caused by reasons not attributable to the contractor, such as improper use by users, the contractor shall not be liable. In reality, if some employers illegally contract out contracts, such as illegally driving down prices and accepting kickbacks to select contractors who do not have the corresponding qualifications, and the quality accidents caused thereby cause personal and property damage to others, the employers shall also bear corresponding responsibilities.
2. Personal and property damage occurred within the reasonable use period of the construction project. Construction projects, once completed, will generally be used for a long time, which requires that there should be no quality problems that endanger the safety of use within the reasonable use period of construction projects, otherwise it will pose a threat to the safety of people and property, and the contractor shall be liable for damages if personal and property damage is caused within the reasonable use period. Therefore, it is first necessary to determine the "reasonable use period", that is, the responsibility period during which the contractor of the construction project bears the quality responsibility for its construction products. Generally, this reasonable period starts from the time of delivery to the Employer. However, unlike the producers of general products who are liable for damages for the quality defects of their products, the longest liability period is not more than 10 years since the products are delivered to the original users. The contractor of a construction project should be responsible for the quality and safety of the whole project within the reasonable use period of the construction project. There is no specific provision in this law on the period of reasonable use. This needs to be judged by the relevant technical departments according to the different conditions of various construction projects, such as building structure, use function, natural environment and other factors. According to the General Principles of Civil Building Design (Trial) formulated by the relevant authorities in the State Council, the durability of buildings determined by the main structure of civil buildings is divided into four levels: the first-class durability is more than 100 years, which is suitable for important buildings and high-rise buildings.(refers to residential buildings with more than 10 floors, public buildings and comprehensive buildings with a total height of more than 24 meters); The secondary durability is 50 to 100 years, which is suitable for general buildings; The third-class durability is 25-50 years, which is suitable for secondary buildings; Class IV durability is less than 15 years, which is suitable for temporary buildings. That is to say, in addition to temporary buildings, the reasonable service life of civil buildings should be at least 25 years, during which the safe use of buildings must be ensured. If the construction project has passed the reasonable use period, it is not allowed to continue to be used in principle. If the user continues to use it, the contractor will not be liable for damages caused by the construction project.
3. Caused personal and property damage. The injured party here not only refers to the other party to the construction project contract, that is, the employer, but also includes the end user of the construction project and other people who suffer from the construction project.
According to the provisions of this article, if a quality accident of a construction project is caused by the contractor, resulting in personal and property damage, the contractor shall be liable for compensation. If it causes personal or property damage to the employer, the employer may choose to request the contractor to bear the liability for breach of contract or tort.
Article 283 Where the developer fails to provide raw materials, equipment, site, funds and technical data in accordance with the agreed time and requirements, the contractor may postpone the project date and have the right to claim compensation for losses such as work stoppage and slowdown.
[Interpretation] This article is about the liability for breach of contract when the employer fails to provide raw materials, equipment, venues, funds and technical data according to the agreed time and requirements.
If it is agreed in the project contract that the employer shall provide raw materials, equipment, site, funds and technical data, the employer shall provide the contractor with the qualification certificates of raw materials, equipment and their products required for construction according to the agreed list of types, specifications, quantities, unit prices, quality grades and the time and place of provision. The contractor and the employer shall jointly inspect and accept the raw materials and equipment, which shall be properly kept by the contractor, and the employer shall pay the corresponding storage fees. For materials that must be tested before they can be used, the contractor shall conduct tests such as flame measurement and toxic reaction in accordance with the agreement. Do not have the test conditions, can entrust a professional organization to test, the cost shall be borne by the employer. If the types, specifications, models and quality grades of raw materials and equipment provided by the Employer do not conform to the agreement after inspection, the Contractor has the right to refuse to accept and keep them, and may require the Employer to transport them out of the construction site and replace them. If the Employer fails to provide raw materials and equipment in accordance with the agreed time, the Contractor may suspend the construction and postpone the construction period, and the Employer shall be liable for damages if the Contractor stops work and slows down the work.
Where the site is provided by the employer, the employer shall provide the contractor with the site for the contractor’s construction, operation, transportation and stacking of materials and equipment as well as the surrounding sites (including all passages) involved in the construction work in accordance with the contract. The specific work includes: 1. Before the contractor starts work, the employer shall timely go through the declaration procedures for relevant documents, certificates and temporary land use, including land requisition and lease within the project address and temporary facilities, application for construction permit and permit for occupying roads, blasting and temporary railway special branch line. 2. Determine the positioning stakes, leveling points and coordinate control points of construction projects and related roads, lines and sewers. 3. Before providing the site, the employer shall remove all obstacles affecting the contractor’s construction in the construction site, and provide the contractor with water, electricity, heat, telecommunications and other pipeline lines needed for the construction to ensure the needs of the contractor during the construction period. If the Employer fails to provide a site suitable for work, which prevents the Contractor from carrying out the work, the Contractor has the right to require the Employer to remove obstacles, postpone the construction period and suspend the work, thus causing the Contractor to stop work and lose work, and the Contractor may require the Employer to bear the liability for damages.
If the employer provides the funds needed for the project construction, the employer shall pay the contractor at the agreed time and amount. The funds here generally refer to the project funds. In reality, the project payment provided by the employer includes two types: advance payment and payment according to the progress of the project, which can be specifically agreed by both parties in the construction project contract. If the construction project contract stipulates that the employer shall prepay the project payment, the employer shall prepay the project payment to the contractor according to the agreed time and amount, and deduct it one by one according to the time and proportion agreed in the contract after the construction starts. If the Employer fails to prepay the project payment in accordance with the contract, the Contractor may issue a notice to the Employer to prepay the project payment, and if the Employer still fails to prepay the project payment as required after receiving the notice, the Contractor may stop working and postpone the construction period, and the Employer shall pay the interest payable to the Contractor from the date of payment, and compensate the losses caused by the contractor’s shutdown and slowdown. If the construction project contract stipulates that the employer shall pay according to the progress of the project, the employer shall pay the project payment according to the progress agreed in the contract. In practice, after the agreed part of the project is completed, the employer will confirm the engineering quantity, calculate the project price according to the unit price and charging standard of the corresponding project that constitutes the contract price, and pay it after being signed by the employer. If the Employer fails to pay the project payment as required within a reasonable period after signing the calculation result, the contractor may send a notice of payment to the Employer.If the Employer still fails to pay the project payment according to the requirements after receiving the notice, the Contractor may stop working and postpone the construction period, and the Employer shall pay the interest of the payable price to the Contractor from the date of payment, and compensate the losses caused by the contractor’s shutdown and slowdown.
Where the Employer provides the technical data related to the project construction, the Employer shall provide the contractor with the technical data that meet the agreed requirements according to the time and number of copies agreed in the contract. The technical data here mainly include survey data, design documents, construction drawings and instructions. Because according to the provisions of laws and administrative regulations, the contractor must carry out the construction in accordance with the quality standards, technical regulations and technical data such as design drawings and construction drawings stipulated by the state. If the employer fails to provide technical data as agreed, the contractor will not be able to work normally. In this case; The contractor may require the employer to provide the technical data necessary for the construction work within a reasonable period of time, and has the right to suspend the work, postpone the construction period, and have the right to require the employer to bear the losses caused by the contractor’s shutdown and slowdown.
Article 284 Where the project is stopped or postponed due to the employer’s reasons, the employer shall take measures to make up for or reduce the losses, and compensate the contractor for the losses and actual expenses caused by work stoppage, slowdown, reverse shipment, relocation of machinery and equipment, and backlog of materials and components.
[Interpretation] This article is about the provisions on the responsibilities that should be borne by the employer for stopping or delaying the construction of the project.
In the process of project construction, the employer shall perform his obligations in accordance with the contract, provide necessary conditions for the contractor’s construction work and ensure the smooth progress of the project construction. If the project construction cannot be carried out according to the agreed schedule due to the reasons of the Employer, the contractor may stop or postpone the construction. "Because of the Employer" here generally refers to the following situations in practice: 1. The Employer changes the engineering quantity; 2. The design documents and other technical data provided by the Employer are wrong or the Employer changes the design documents; 3. The Employer fails to provide construction materials, equipment or project progress payment in time as agreed; 4. The Employer fails to timely accept the conditions of intermediate works and concealed works and handle the relevant completion procedures; 5. The employer cannot guarantee the working conditions required for the construction work in accordance with the contract, so that the work cannot be carried out normally, and so on. In the event that the project construction cannot be carried out normally due to the above reasons, the contractor may stop, postpone or postpone the construction period, and notify the Employer in time. The contractor shall take reasonable measures to reduce and avoid losses during the suspension and delay of construction, properly protect the completed project and do a good job in the protection and handover of purchased materials and equipment, and evacuate its own machinery and personnel from the construction site. The employer shall provide necessary conditions for the withdrawal of the contractor. The contractor shall report the economic expenses and other actual expenses incurred in the process of stopping construction or delaying construction to the employer.
If the employer stops or delays the construction of the project due to its own reasons, the employer shall bear the liability for breach of contract. First of all, the employer shall take necessary measures to make up for or reduce the losses, and at the same time, it shall remove obstacles so that the contractor can resume the construction work as soon as possible. If the contractor finds errors and irrationalities in the design during the construction, it shall notify the employer, who shall, after receiving the notice, study with the designer and other relevant units in time to determine the modification opinions or change the design, and send the revised design documents to the contractor in time. The employer shall also compensate the contractor for the losses during the period of suspension or delay of construction, including the losses caused by suspension, slowdown, transshipment, relocation of machinery and equipment, and the backlog of materials and components and the actual expenses.
Article 285 Where the survey and design are reworked, stopped or the design is modified due to the employer’s change of plans, inaccurate information provided, or failure to provide necessary survey and design working conditions within the time limit, the employer shall increase the fees according to the workload actually consumed by the surveyor and designer.
[Interpretation] This article is about the responsibility for the rework, shutdown or modification of survey and design due to the reasons of the Employer.
In an engineering survey and design contract, the employer shall provide the surveyor and designer with the basic data and technical requirements needed to carry out the survey and design work in accordance with the contract, and be responsible for the time, progress and reliability of the data provided.
Commissioned survey, before the survey work, it should be clear about the technical requirements and survey stage to the surveyor, provide the basic survey data and drawings needed for the survey work on time and meet the basic requirements for the surveyor to prepare the outline and the project budget. Before the survey, the employer shall prepare all kinds of materials on time according to the materials plan put forward by the surveyor and bear the expenses. The employer shall provide necessary conditions for the surveyor to carry out his work, including sending personnel to assist the surveyor in working contact with relevant departments, and create and solve the conditions for the surveyor in time. Such as land acquisition, removal of obstacles, leveling the construction site, repairing roads, connecting power supply and water supply, etc., and bear the costs; Prepare living and working conditions such as accommodation, office and so on for the surveyors according to the contract.
If the design is entrusted, the employer shall provide the designer with the basic data and technical requirements of the design in accordance with the contract. Before the preliminary design, the employer shall provide the designer with the approved feasibility study report, site selection report, agreement documents on raw materials (or approved resource report), fuel, water, electricity and transportation, survey data that can meet the requirements of the preliminary design, and technical data that need to be obtained through scientific research; Before the construction design, the employer shall provide the approved preliminary design documents, survey data, construction conditions and technical data of relevant equipment that can meet the design requirements of the construction drawing. At the same time, the employer shall provide necessary working and living conditions for the designers when they enter the site for work, so as to ensure their normal work.
Where the Employer provides relevant technical data to the surveyor and designer, the Employer shall be responsible for the quality and accuracy of the technical data.
If the Employer changes the survey and design project, scale and conditions and needs to conduct survey and design again, it shall promptly notify the surveyor and designer. After receiving the notice, the surveyor and designer shall rework or modify the design and have the right to postpone the construction period. The Employer shall rework according to the actual workload consumed by the surveyor and designer, and pay the survey fee and design fee accordingly.
If the surveyor and designer find that the technical data provided by the employer is inaccurate in their work, they shall notify the employer to modify the technical data and provide accurate technical data within a reasonable period of time. If the survey and design work cannot be carried out normally due to serious errors in the technical data, the surveyor and designer have the right to stop work and postpone the construction period before the employer provides the technical data again, and the losses caused by the stop work shall be borne by the employer. Where the technical data re-provided by the Employer have been significantly modified, and the surveyor and designer need to rework or modify the design, the surveyor and designer shall conduct the survey and design work according to the new technical data, and the Employer shall pay the survey fee and design fee accordingly according to the actual workload consumed by the surveyor and designer.
If the Employer fails to provide the working conditions required for the survey and design work in accordance with the contract, the surveyor and designer shall notify the Employer to provide them within a reasonable period. If the Employer fails to provide the necessary working conditions, the surveyor and designer shall have the right to stop work and postpone the construction period, and require the Employer to bear the losses during the period when the surveyor and designer stop work.
Article 286 Where the developer fails to pay the price as agreed, the contractor may demand the developer to pay the price within a reasonable time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the project or apply to the people’s court to auction the project according to law, except that it is not suitable for discount or auction according to the nature of the construction project. The price of a construction project shall be given priority in compensation for the discount or auction price of the project.
[Interpretation] This article is about the responsibility of the employer for not paying the project price.
After the completion of the project construction, the Employer shall make final accounts of the project in the way and within the time limit agreed in the contract, pay the price, and accept the project after paying the price to the contractor. In practice, after the completion of a construction project, the contractor shall provide the complete completion data and the completion acceptance report to the employer in accordance with the relevant provisions of the national project completion acceptance. After receiving the completion acceptance report, the Employer shall timely organize relevant departments to accept the project according to the construction drawings and specifications, the construction acceptance specifications and quality inspection standards issued by the state. After the completion acceptance, the employer shall pay the price as agreed. In the practice of engineering construction, when the completion report is approved, the contractor shall submit a settlement report to the employer in accordance with the relevant provisions of the state or the time and method agreed in the contract, and handle the completion settlement. After receiving the settlement report, the Employer shall make approval or propose amendments in time, send the appropriation notice to the handling bank to pay the project payment within the time stipulated in the contract, and send a copy to the Contractor. The contractor shall deliver the completed project to the Employer after receiving the project payment, and the Employer shall accept the project. If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time and bear the liability for breach of contract for overdue payment.
From the early 1990s to the present, with the rapid growth of investment scale in fixed assets, the phenomenon of arrears in project payment has increased greatly. In many areas, the amount of arrears of project funds is huge, and some projects have no time limit. The problem has become quite prominent, which not only seriously affects the production and operation of construction enterprises, restricts the development of construction enterprises, but also affects the progress of project construction and restricts the improvement of investment efficiency. In order to truly solve the problem of arrears in project payment and guarantee the realization of the contractor’s price claim, this article stipulates that if the employer fails to pay the price as agreed and fails to pay within a reasonable period after being urged by the contractor, the contractor may negotiate with the employer to discount the project, or apply to the people’s court to auction the project according to law. The price of a construction project shall be given priority in compensation for the discount or auction price of the project. The contractor shall pay attention to the following points when exercising the priority of compensation in accordance with the provisions of this article:
1. If the Employer fails to pay the price, the Contractor shall not immediately discount or auction the project, but shall urge the Employer to pay the price within a reasonable period. If the employer has paid the price within the time limit, the contractor can only ask the employer to bear the liability for breach of contract such as paying the agreed liquidated damages or paying overdue interest and compensating other losses. If the Employer still fails to pay the price within a reasonable period after the demand, the contractor can discount or auction the project to give priority to compensation.
2. The contractor shall follow certain procedures when discounting or auctioning the project according to law. If the employer discounts the project, it shall reach an agreement with the employer to determine a certain price with reference to the market price and transfer the ownership of the project from the employer to the contractor, so as to realize the contractor’s price creditor’s right. If the contractor fails to reach a discount agreement with the employer and adopts the auction method, it shall apply to the people’s court to auction the project according to law. The contractor shall not entrust an auction company or auction the project by itself.
3. If the project discount or the price obtained after auction exceeds the amount payable by the Employer, the excess shall be owned by the Employer; If the discount or auction proceeds are not enough to pay off the contractor’s creditor’s rights, the contractor may request the employer to pay the insufficient part.
4. According to the provisions of this article, the contractor cannot discount or auction the project according to its nature. If the ownership of the project does not belong to the employer, the contractor shall not discount the project. For example, national key projects and projects with specific purposes should not be discounted or auctioned.
Article 287 Where there are no provisions in this chapter, the relevant provisions of the contract shall apply.
[Interpretation] This article is about the application of the contract.
The construction project contract belongs to the contract to complete the work in nature. The contract to complete the work is a large type of contract developed on the basis of the traditional civil law contract, which generally includes the contract of contract, technical service and technical development contract. Traditional contracting contracts generally include contracting and construction engineering contracts. In some countries, contracting is stipulated in special chapters in civil codes, and construction engineering is also included in the norms. Article 18 and Article 19 of China’s Economic Contract Law respectively stipulate the construction project contract and the processing contract. When drafting the contract law, considering the integration of economic contract law, foreign-related economic contract law and technical contract law, the well-known contracts stipulated in the economic contract law should be retained and stipulated in a special chapter. China’s economic contract law has regarded the construction project contract as a new kind of contract different from the contracting contract. At the same time, considering that the construction project is different from other work, it has some characteristics different from the general contract. Therefore, in chapter 15, the contracting contract is stipulated, and in chapter 16, the construction project contract is stipulated. According to the provisions of this law, a contract of contract is a contract in which the contractor completes the work and delivers the work results according to the requirements of the ordering party, and the ordering party pays the remuneration. Contracting includes processing, customization, repair, printing, advertising, reproduction, testing and inspection. A construction project contract is a contract in which the contractor carries out the project construction and the employer pays the price. The main body of a construction project contract is the employer and the contractor.The subject of a construction contract is a construction project, including the construction of houses, highways, railways, bridges, tunnels and reservoirs. The construction project contract was originally a kind of contract, which belongs to the contract to complete the real estate project. Contract and construction project contract also have the same characteristics as general contract: if they are both promissory contracts, bilateral contracts and paid contracts, they all aim at completing certain work, and their targets are specific. Therefore, this article stipulates that if there are provisions in this chapter but not in this chapter, these provisions in the contract can be applied according to the nature of the construction project contract. The employer in the construction project contract is equivalent to the ordering party in the contract, and the contractor is equivalent to the contractor in the contract.
After comparing this chapter with the contract chapter, we can generally see that the following clauses are not stipulated in this chapter but are stipulated in the contract:
Article 255 of the Contract Law stipulates: "If the contractor provides materials, the contractor shall select the materials in accordance with the agreement and accept the inspection by the ordering party."
According to the provisions of this article, if the parties agree in the construction project contract that the contractor shall provide materials, components and equipment, and the time, quantity and quality of providing materials, components and equipment, the contractor shall prepare materials, components and equipment as agreed. When preparing materials, components and equipment, the contractor shall also prepare relevant materials, such as invoices, quality specifications and other documents. After the contractor has prepared the materials, components and equipment, it shall promptly notify the employer for inspection, and truthfully provide invoices and documentation of quantity and quality. After receiving the notice, the Employer shall timely inspect the materials, components and equipment, and carefully check the materials, components and equipment provided by the Contractor and relevant documents. If the quantity and quality of materials, components and equipment in the contract are agreed, and the Employer thinks that the materials, components and equipment selected by the Contractor conform to the agreement, it shall inform the Contractor or confirm in writing according to the requirements of the Contractor. Upon inspection, if the Employer finds that the quantity of materials, components and equipment is short, it shall promptly notify the Contractor to make up for it. If the Employer finds that the quality of materials, components and equipment is not in conformity with the agreement, it shall promptly notify the Contractor to replace them, and the expenses incurred therefrom shall be borne by the Contractor.
Article 256 of the Contract Law stipulates: "Where the ordering party provides the materials, the ordering party shall provide the materials as agreed. The contractor shall timely inspect the materials provided by the ordering party, and if it finds that the materials are not in conformity with the contract, it shall immediately notify the ordering party to replace, supplement or take other remedial measures. "
The contractor shall not replace the materials provided by the ordering party without authorization, and shall not replace the parts that do not need to be repaired.
According to the provisions of this article, in the construction project contract, the parties may agree that the employer shall provide materials, components and equipment. The employer shall provide the contractor with materials, components and equipment in the agreed quantity and quality at the time agreed in the contract. When the Employer provides materials, components and equipment, the Contractor shall immediately inspect them. If the materials, components and equipment provided by the Employer conform to the agreement after inspection by the Contractor, the Contractor shall confirm and notify the Employer. If, after inspection, the number of materials, components and equipment provided by the Employer is insufficient, the Contractor shall notify the Employer to make up for it; If the quality of materials, components and equipment provided by the Employer do not conform to the agreement, the Contractor shall promptly notify the Employer to replace them to meet the contract requirements. If the materials, components and equipment provided by the Employer conform to the agreement after inspection, the Contractor shall properly keep the materials, components and equipment and complete the construction work with them, and shall not replace them without authorization.
Article 257 of the Contract Law stipulates: "If the contractor finds that the drawings or technical requirements provided by the ordering party are unreasonable, it shall promptly notify the ordering party. If the hirer causes losses to the contractor due to reasons such as delay in reply, it shall compensate for the losses. "
According to the provisions of this article, if the contractor finds that the drawings or technical requirements provided by the employer are unreasonable before or during the construction work, that is to say, it is difficult to produce a construction project that conforms to the contract according to the drawings or technical requirements, in this case, the contractor shall promptly notify the employer of the situation. After receiving the notice from the contractor that the drawings or technical requirements are unreasonable, the employer shall immediately take measures to modify the drawings and technical requirements.
Article 265 of the Contract Law stipulates: "The contractor shall properly keep the materials provided by the ordering party and the finished work products. If the materials are damaged or lost due to improper keeping, the contractor shall be liable for damages."
According to the provisions of this article, after the Employer provides materials, components and equipment according to the contract, the Contractor has the obligation to properly keep the materials, components and equipment provided by the Employer, maintain the quality status of the materials, components and equipment, and prevent abnormal loss of materials, components and equipment, thus ensuring the quality of the project. Before the project is delivered, the contractor shall properly keep the project. If the contractor fails to properly keep the materials, components and equipment or the project is damaged or lost, the contractor shall be liable for damages.
Article 266 of the Contract Law stipulates: "The contractor shall keep secrets according to the requirements of the ordering party, and shall not keep copies or technical materials without the permission of the ordering party."
According to the provisions of this article, the contractor has the obligation of confidentiality. The contractor’s duty of confidentiality is embodied in the fact that if the contractor knows the business secrets of the employer in the process of concluding the contract, the contractor shall keep them confidential and shall not disclose them or use them improperly. After the completion of the construction project, the contractor shall return the confidential drawings and technical data to the Employer. Without the permission of the Employer, the contractor shall not keep the drawings and other technical data.
