的承包人工期索赔研究 ——外文文献及翻译.docx

天津理工大学2012届本科毕业论文外文文献The study of contractors time claim and cost claimJingbo Jiang Yilin YinSchool of Management School of Management Tianjin University Tianjin University of TechnologyTianjin, China Tianjin, ChinaJ ABSTRACTThis thesis talks from the influence of time claim, cost claim and the main profits of contractors time claim and cost claim. Studying contractors major goal of claimtime and cost, their relationships, the fundamental purpose of contractors time claim is to get compensation cost, this thesis taking a starting point find their interconversion. Acceleration claim can do their interconversion and analyze acceleration claims classification and cost structure, Contractor can make a reasonable decision-making about time claim and cost claim by the contract and their actual condition to maximize their gains.Keywords:FIDIC Time claim Cost claim Acceleration claim Decision-making of claimI. INTRODUCTIONInternational engineering claim is the central part of international project contract management. Claim, in the broad sense, refers to the rational re-allocation process for the responsibility born by both sides of the contract. The both sides of the contract are entitled to claim. The level of claims of the contractors marks how the enterprise is doing in its management. As to the contractor and according to the aim of the claim, the claim is subdivided into time claim and cost claim. In the course of construction, the contractor may interchange time claim and cost claim within a reasonable range and then get the most benefit. This article is based on the FIDIC1999 edition of “Condition of Contract for Construction”.II. CLASSIFICATION OF INTERFERENCEIn construction, contractors may claim for interference case can be divided into the following three categories: the first case will not only result in the extension period will result in increased costs. Such incidents include engineering change and so on, generally speaking, in most case will cause interference to extend the time and cost increases. The second type will only result in cost increases, and will not affect the project; such case is mainly to accelerate the construction and material prices adjust. The third type will only result in the extension period, and will not lead to cost increases, such incidents are some of the main case of force majeure, when contractors and employers were to bear the duty and cost of construction, the contractor should not raise the cost of claims. As shown in table I.TABLE I. CLASSIFICATION OF INTERFERENCEClassification of interferenceInterference caseThe impact of time and costAdverse natural conditions and man-madeobstacles of Claim CaseThe scope of the works to change of Claim CaseMistake contract documents of Claim CaseEngineering Extension of claim caseEmployers default of claim caseAct changes of claim caseDesign contract of claim caseThe impact of costAccelerate the construction of claim casePay delayed of claim caseRising in price of claim caseTermination of the contractThe impact of timeForce majeure of the contractAs can be seen from the classification of interference, if the contractor is carrying out the claim, he should take both the time claim and cost claim into consideration. That is he should convert both the events that affect both the time and cost and those that affect only the time into the events of claim that only affect the event. From the list of the events that affect only the cost, it can be seen that acceleration claim may convert the events that affect only the time into those that affect only the cost.III. ACCELERATION CLAIMWhen a contractor is acceleration claim, he needs to provide the main evidence, including documentary evidence and expert testimony. Compared to the general construction claims, the contractor must not only provide the evidence for the existence of construction claim, he should also explain in the evidence that the cost for speeding up the construction is reasonable. The employers will hardly believe these if the contractor only provides the evidences for low efficiency due to the related problems. As a result, the judge or arbitrator will hardly adopt them in arbitration or litigation. At this time, the contractor must hire experts to analyze this type of claim and to provide expert testimony. In addition, through carrying out speeding up construction claim, the contractor should firstly distinguish between direct claim and presumption claim.A. Directly acceleration claimAcceleration claim directly is the order from one side of the contract to the other in order to complete the project beforehand, which is generally clear in the contract. For example, the contract provides that the employers have the right to change the project and adjust the construction period, which entitles the employer to speed up the contractors project. Employers can ask the contractors to speed up the construction in order to avoid delaying adverse construction season and to obtain low-cost raw materials when the price is going up. When a contractor is carrying out the claim for directly speeding up the construction, it is necessary to provide the following evidence:l The employer issues a written contact of changed ordersl Contractors take reasonable measures to accelerate the realization of constructionl Speeding up the construction has taken placel Contractors bear additional lossesB. inferable speeding up construction claimInferable speeding up construction claim means that the contractor has reasonable grounds for the extension period, but the employer demands that he should complete the initial construction project on time. In other words, when the employer refuses to forgive the contractors delay in the project, the contractor is forced to complete the project on schedule and there is inferable speeding up construction claim on the part of the contractor. For example, the Olympic Games related projects that have been scheduled must be completed as planned. Without the consideration of period claim, inferable speeding up construction claim can be calculated as an important measure for additional cost compensation. The following evidences can be taken into consideration:l In the construction process, the delay in construction can be forgivenl Employers know in time that the project can be forgiven for the existence of the claim period, and receive a notice on extending the projectl Employers reject the delay request from contractorsl According to the employers instruction or order, the contractor can reasonably develop the project of the employer on condition that the period is stable, or he can take it for granted that the employer has invested more resources in order to restore the projectl The contractors efforts in speeding up the construction result in additional costC. The constitution of costs for acceleration claimThe cost for speeding up the construction is due to the contractors completing the project ahead of schedule. Generally speaking, the contractor can speed up the construction costs of the following claims:l Increase costs for raw material: the rapid transport of raw material will increase the additional costsl Inefficient use of labor: because of much more employment than originally planned, some work needs to be rescheduled, needs more time or can not live up to the planned conditionsl Additional equipment cost: some more equipment are needed for speeding up construction, at the same time, a similar device to work independently need more work than the maintenance costl Management fee at the scene: when the work is speeding, more people for management are needed, which will linearly or non-linearly increase the cost of on-site managementl Sub: to achieve the purpose of speeding up the construction, some of the work may be distributed at a price beyond the constructors expectationl Headquarters management fee: to speed up the construction, more and more people are needed for the headquarters to serve the projectl Sub-contractors claim: sub-contractors often have to follow to join to speed up construction, and they may accordingly make claimsIV. POLICIES FOR CONTRACTORS CLAIMBy the above description of the content we can draw the following conclusions, the contractor can change time claim into cost claim by the method of accelerator construction. So contractors major goal of claimtime and cost, it can be set up a logical relationship. Contractor can make a reasonable decision-making about time claim and cost claim by the contract and their actual condition to maximize their gains.A. The main benefits for the contractors cost claimClaim cost is the cost of compensation; contractor can make the other benefits by claim cost. “Successful on low-cost, profit by the Claim” is the conclusion of contractor. The main benefits for the contractors cost claim are showed in the tableII.TABLE II. THE MAIN BENEFITS FOR THE CONTRACTORS COST CLAIMThe Claim typeThe main benefitsCost claimIncrease labor time feeRising labor costsReduce loss of productivityIncreased use of Materials feeRising Materials costsRising sub-contractor costLease equipment costsOwn equipment rental feesMechanical increase in the cost of its own legal feesManagement feeReasonable profit enterprisesOpportunities for loss of profitsAs can be seen from the table, the contractors claim can include non-contractors caused by the possible additional costs; this means that the contractor benefits of cost claims may contain the time claims and acceleration Claim. Therefore, under certain conditions put into the cost of construction Claim is also in line with the fundamental interests of the contractor.B. The main benefits for the contractors time claimThe goal of time claim is extended period, and the result of time claim is make money or reduce losses. In practical engineering project Successful time Claim can make money of extended period, the main benefits for the contractors time claim are showed in the table III.TABLE III. THE MAIN BENEFITS FOR THE CONTRACTORS TIME CLAIMThe Claim typeThe main benefitsTime claimRelief delay costsIncrease costs for laborIncrease costs for materialLease equipment costsManagement feeThe potential loss of profitsC. The main benefits for the contractors acceleration claimThe contractor to accelerate construction claim objective is to obtain compensation for extra costs to be incurred, the result is to reduce the delay time. Therefore be able to speed up the construction of partial or full exemption from the contractors delay responsibility for damage. The main benefits for the contractors acceleration claim are showed in the table IV.TABLE IV. THE MAIN BENEFITS FOR THE CONTRACTORS ACCELERATIONThe Claim typeThe main benefitsAcceleration claimRelief delay costsThe loss of inefficient productivityLease equipment costsManagement feeReasonable profit enterpriseD. policies for contractors claimWhen the employers agree to the construction contractor claims, the contractor may claim in the period and the cost of claims can be made during decision-making. From Table III (the main benefits for the contractors time claim) and Table IV(the main benefits for the contractors acceleration claim), it can be clearly seen that the two main differences are reflected in: the time claim can result in the fee for personnel and raw material and some profit loss. Speed up construction claim can make up for the loss in low productivity and reasonable profit. In general, the potential loss of profit claim is difficult to calculate and the employers also find it difficult to support claims of the contractor. As a result, contractors mainly make a comparison among personnel, rise in material rate, loss caused by low productivity and reasonable profit. They can adopt a program for the largest claims according to their contracts and themselves. However, in accordance with the principle of profit maximization, contractors should take into account the probability of success while making claims. Besides, they should also consider the relevant legal provisions, past cases, available evidences, etc. in order to adopt a program with a relatively large expectation and high profit.ACKNOWLEDGMENTWe would like to acknowledge the help and support from many of our colleagues in Institute of Public Project & Cost Engineering (IPPCE) in Tianjin University of Technology (TJUT).REFERENCES1 FIDIC (1999), Condition of Contract for Construction.2 John Murdoch and Will Hughes (2000), Construction Contracts: Law and Management (Third Edition)3 Zhang Shuibo, He Bosen FIDIC Conditions of Contract for the new navigation and analysis M Beijing: China Building Industry Press, 20034 Li jianshe, Lv shengpu Civil Claim methods and examples M Beijing: Peoples Traffic Press 2005中文译文承包商工期索赔和费用索赔的研究姜敬波 管理学院 天津大学 天津 中国 J尹贻林 管理学院 天津理工大学 天津 中国 摘 要本论文从工期索赔、费用索赔的影响和承包商工期索赔和费用索赔的主要好处谈起。研究承包商索赔工期和费用的主要目标及它们之间的关系，承包商工期索赔的根本目的是得到费用补偿，本文以这个为讨论点指出他们的相互转换。加速索赔可以做自己的加速互换和分析索赔的分类及成本结构，承包商可以根据索赔工期和费用的索赔合同实际情况做出合理的决策，以最大限度地提高其收益。关键词：FIDIC合同 工期索赔 费用索赔 加速索赔 决策索赔I 导言国际工程索赔是国际工程项目合同管理的中心部分。在广阔的某种意义上说，也就是指诞生于合同双方的责任合理的的重新分配的过程。责任的双方有权要求赔偿。承包商索赔的水平标志着企业进行如何管理。根据承包商和索赔依据的宗旨，索赔被细分为工期索赔和费用索赔。在施工过程中，承包商可以在一个合理的范围内交换工期索赔和费用索赔，然后获得最大的利益。本文是基于1999版的FIDIC施工合同文件。II 干扰的分类在施工中，承包商因干扰事件可以进行索赔的情况分为以下三类：第一种情况下不仅会导致延长工期也将导致费用的增加。一般来说，这类事件包括工程变更等等，在大多数情况下，会造成延长工期和费用增加的影响。第二类是只有增加费用的影响，并不会影响项目工期；这种情况下，主要是因为施工和材料价格调整的推动。第三类只导致增加工期，并不会导致费用增加，这类事件发生在一些不可抗力的情况下，当承包商和业主承担责任和建设成本时，承包商不应提出费用索赔。如表1所示。表1 干扰的分类干扰分类干扰事件工期和费用的影响恶劣的自然条件和人为阻碍的索赔事件工程范围变更索赔事件错误合同文件索赔事件工程延期索赔事件业主延误索赔事件行事更改的索赔事件设计合同索赔事件费用影响加速施工索赔事件酬薪延误索赔事件价格上涨索赔事件合同的终止工期影响合同中的不可抗力从干扰的分类可以看出，如果承包商进行索赔，他应考虑到工期索赔和费用索赔。这时他应该区分影响工期和费用所发生的事件，考虑那些仅因影响到工期索赔的事件。从仅影响费用的事件列表中，可以看出，加速索赔可以转换那些仅仅从影响费用而影响工期的事件。III 加速索赔当承包商是加速索赔时，他需要提供的主要证据包括书面证据、专家证词。与一般工程索赔相比，承包商不仅必须提供施工索赔存在的证据，他也应该解释关于加速工程费用合理性的证据。如果承包商只提供关于相关问题低效率的证据，那么业主将很难相信这些。因此，法官或仲裁员很难采用仲裁或诉讼。在这时，承包商必须聘请专家分析这种类型的索赔并提供专家证词。此外，通过开展施工加速索赔，承包商首先应该区分是直接索赔和推理索赔。A直接加速索赔直接加速索赔是合同的一方命令合同另一方在合同初始工期前完成项目。例如，合同规定业主有权更改项目和调整施工时间，即用人单位有权加速承包商的工程。业主可以要求承包商加速施工，以避免不利施工季节引起的拖延和获得当价格上涨时的低成本原料。当一个承包商进行直接加速施工索赔时，有必要提供下列证据：l 业主提出书面变更条令文件l 承包商采取合理措施以加速施工l 加速施工已产生l 承包商承担额外损失B能推理的加速施工索赔能推理的加速施工索赔是指承包商有合理理由延长工期，但业主要求他应该按时完成初步工程项目。换句话说，当业主拒绝原谅承包商在项目中的延误时，承包商被迫如期完成项目，这里就存在承包商能推理加速施工的索赔。例如，奥运会已排定的相关的项目，必须按计划完成。在没有考虑索赔期的情况下，能推理的加速施工索赔是用来计算额外费用补偿的重要措施。可以考虑以下依据：l 在施工过程中，施工延误是可以原谅的。l 业主知道该项目在索赔期内存在可以被原谅，并收到延长项目的通知。l 业主拒绝来自承包商的延迟要求。l 根据业主的指示或命令，承包商可以在业主有稳定条件的期间合理开发项目，或者他可以想当然地认为业主已投入更多资源以恢复该项目。l 承包商在加速施工方面的工作导致额外费用。C加速索赔费用