ATTEN: Manager Liu
ADD: Longhua Development Zone, Jing County, Hengshui City, Hebei Province
The objective existence of construction contract risk is determined by its contract particularity, the long-term performance of the contract, diversity, complexity and the characteristics of construction projects. Construction projects usually have a long construction cycle and long contract execution period; the huge complexity of the project determines the investment of more human, material and financial resources, risk plus construction contract involves a wide range of aspects, in addition to the contracting parties and local government authorities and third-party interests, so the construction contract has high potential risk. Therefore, to prevent and control the risks of construction contracts as effectively as possible and to prevent the loss of enterprise interests is a problem that every construction enterprise should attach great importance to, how to strengthen the prevention and control of construction contract risks, mainly in the process of formation, negotiation and formal signing of construction contracts and contract performance. In order to prevent risks in bidding and contract acquisition, it is necessary to strengthen the mu-check of project legitimacy and the mu-check of the main body of contract project. Before bidding, it is necessary to have a thorough understanding of the owner's financial credit, economic style and the corresponding conditions for signing contracts.
The main contents to be understood should include the approval documents, land, planning and construction permit procedures of the construction drawing department concerned with the design, whether the demolition and relocation are in place, and whether the work of "three links and one leveling" is in place, etc. From the side survey to understand the owner's creditworthiness, especially the fund arrival rate of the project, if it is a real estate development unit, it is best to fully understand the contract terms signed by its previous project bidding. In the process of bidding, the tender documents should be thoroughly investigated and comprehensively analyzed, the tender documents should be correctly understood, the contract liability should be determined one by one, the owner's intention and the bidder's instructions should be thoroughly understood, the construction site should be surveyed in detail, the drawings should be carefully studied and examined, the quantity of the project should be carefully reviewed, and the unit price and technical measures of sub-items should be recognized with the project management department. In order to reduce the risk of contract signing and the lack of restrictive clauses on owner's profit, the employer sometimes provides the draft non-demonstration contract with harsh conditions before issuing the notice of winning the bid, requiring the construction enterprise to accept all the same clauses unconditionally, often transferring a considerable part of the risk to the construction unit and restricting the owner's profit. Section 2 and the protective clause for the contractor.
Because construction enterprises are in a very passive situation at this time, we should try our best to understand the reliable information of the construction enterprises, adhere to the principles, use policies and regulations to modify and improve as far as possible, avoid the negotiation of Okada risk contracts and sign contracts after obtaining contract qualifications, we should transfer our main energy to the contract negotiation and signing stage, whose main work is the contract text. Conduct a review, analyze the contract risk according to the actual situation of the project, and take corresponding countermeasures and finally sign a favorable contract for the project. Before negotiating a construction contract, the contractor should specify that a special contract management organization, such as the Operating Department, is responsible for the inspection of the construction contract. According to the requirements of the contractor, the contractor should conduct research one by one and implement supervision, management and control. When examining the substantive content of the contract, we should pay enough attention to the relevant provisions. We should pay attention to avoiding the risk of the contract time limit agreement. If the start time agreement is calculated from the date of the start report and the contract agreement is to calculate the liquidated damages for the completion of the project according to the date, it is better to have a capping clause. The penalty agreement for the time limit guarantee should be reasonable and the full deduction penalty for the duration of the project should be avoided.
Attention should be paid to quality standards and risk prevention of completion acceptance clauses. We should pay attention to the risk prevention of the payment and settlement clauses of the project funds, stipulate that the payment time of the settlement clauses should not exceed the time of exercising priority as far as possible, strive for the agreement of default clauses, and stipulate clearly the time and proportion of the installment deduction in the warranty clauses. Attention should be paid to the study of general clauses, grasp the relationship between general clauses and special clauses, resolve the unfavorable provisions of general clauses to the construction party, and use the provisions of general clauses to safeguard their legitimate rights and interests. Pay attention to the prevention of internal contract style. Attention should be paid to the risk prevention of concluding dispute settlement clauses. In the stage of substantive contract negotiation, negotiation strategies and skills are very important. We should choose people with contract negotiation ability and experience to conduct contract negotiation. Through contract negotiation, the contract can reflect the balance of responsibility and rights between the two parties, try to avoid unilateral stringent constraints of the owners, and put forward the constraints of the owners accordingly. Although contract law gives equal legal status and power to both parties, absolute equality does not exist in actual economic activities.
Power also depends on oneself to strive for, if possible, should strive for the right to draft the contract text. For the contract text proposed by the owner, each clause shall be dealt with.