The following is an overview of the key legal points related to construction engineering design contracts. It can be used as a reference for the review of construction engineering design contracts and the handling of construction engineering design contract dispute cases.
1. Overview of the relevant contents of the construction engineering design contractConcept
Paragraph 2 of Article 2 of the Regulations on the Administration of Survey and Design of Construction Projects (revised in 2017, administrative regulations issued by **) "The term "construction project design" in these Regulations refers to the activities of comprehensively analyzing and demonstrating the technical, economic, resource, environmental and other conditions required for construction projects and preparing construction project design documents according to the requirements of construction projects. "GB T50504-2009 Civil Building Design Terminology Standard" 21.1."Architectural design in a broad sense refers to all the work to be done in the design of a building (group), including the site, architecture, structure, equipment, indoor environment, indoor and outdoor decoration, landscape and other design and engineering budget. Architectural design in the narrow sense refers to solving the reasonable layout of building functions and spaces, the coordination of indoor and outdoor environments, architectural modeling and detailing, and cooperating with structure, design and other types of work to make the building use, safe, economical and beautiful. ”The basic work stages and contents of construction engineering design
(1) Work stage
Construction engineering design work is generally divided into schematic design, preliminary design and construction drawing design. For civil construction projects with relatively simple technical requirements, when the relevant competent authorities do not have review requirements in the preliminary design stage, and there is no agreement on preliminary design in the contract, they can directly enter the construction drawing design after the schematic design is approved.
(2) Work content
Schematic design documents:Design specification (including design description and investment estimation of each specialty, etc.); master plan and related architectural design drawings; Perspectives, bird's-eye views, models, etc., as specified in the design commission or design contract.
Preliminary design documents:Design specification (including general design description and design description of each specialty); Professional design drawings, main equipment or material tables, project budget estimates, etc.; Calculations for each discipline (such documents are not required to be delivered).
Construction drawing design documents:All professional design drawings (including drawing catalogs, descriptions, necessary equipment, material tables, etc.); Project budget; Calculations for each discipline (such documents are not required to be delivered).
Engineering design services include basic engineering design services and other engineering design services。Among them, the basic service of engineering design refers to the service of the designer to provide the preparation of schematic design documents, preliminary design documents (including preliminary design budget estimates) and construction drawing design documents according to the entrustment of the employer, and accordingly provide services such as design technical disclosure, solving design technical problems in construction, and participating in completion acceptance.
Other engineering design services refer to the services that the employer requires the designer to provide separately according to the actual needs of the engineering design and the employer shall pay separately, including overall design services, main design coordination services, standard design and reuse design services, non-standard equipment design document compilation, construction drawing budget compilation, as-built drawing compilation, etc.
Generally speaking, the basic service fee is included in the design fee, and the cost of other engineering design services is charged according to the specific service content. If the parties have agreed on the scope of the design fee, it shall be determined on the basis of the content of the agreement.
Construction drawing review systemArticle 33 of the Regulations on the Administration of Survey and Design of Construction Projects: "The construction drawing design document review agency shall review the content of the construction drawing design documents of housing construction projects and municipal infrastructure projects involving public interests, public safety and mandatory standards for engineering construction. The people's transportation and other relevant departments at or above the county level shall, in accordance with their duties, review the content of the construction drawing design documents involving public interests, public safety, and mandatory standards for engineering construction. Construction drawing design documents shall not be used without review and approval. Article 11 of the Regulations on the Quality Management of Construction Projects: "The specific measures for the review of construction drawing design documents shall be formulated by the competent administrative department of construction and other relevant departments. Construction drawing design documents shall not be used without review and approval. Article 11 of the Administrative Measures for the Review of Construction Drawing Design Documents of Housing Construction and Municipal Infrastructure Projects stipulates that "the review agency shall review the following contents of the construction drawings: (1) whether it meets the mandatory standards for engineering construction; (B) the safety of the foundation and the main structure; (3) Fire safety; (4) Protection and safety of civil air defense projects (excluding civil air defense command projects); (E) whether it conforms to the mandatory standards for energy conservation of civil buildings, and whether the implementation of green building standards for projects should also be reviewed to meet the green building standards; (F) survey and design enterprises and registered practitioners and relevant personnel in accordance with the provisions of the construction drawings stamped with the corresponding stamps and signatures; (7) Other content that laws, regulations, or rules provide must be reviewed. ”Qualification management requirements for the engineering design industryArticle 6 of the Regulations on the Administration of Construction Engineering Survey and Design Qualifications provides that "engineering design qualifications are divided into comprehensive engineering design qualifications, engineering design industry qualifications, engineering design professional qualifications and engineering design special qualifications." The comprehensive qualification of engineering design is only set up as Grade A; Engineering design industry qualification, engineering design professional qualification. The special qualification of engineering design is set up as Grade A and Grade B. According to the nature and technical characteristics of the project, individual industries, professions, and special qualifications can be set up as Grade C, and professional qualifications for construction engineering can be set as Grade D. Enterprises that have obtained comprehensive qualifications for engineering design can undertake construction engineering design business in various industries and at all levels; Enterprises that have obtained the qualification of the engineering design industry can undertake the engineering design business of the corresponding level of the corresponding industry and the corresponding professional and special (except for the qualification of design and construction integration) engineering design business of the same level within the industry; Enterprises that have obtained professional qualifications in engineering design can undertake professional engineering design business of the corresponding level of the specialty and the corresponding special engineering design business of the same level (except for the qualification of integration of design and construction); Enterprises that have obtained special qualifications for engineering design can undertake special engineering design business of the corresponding level of the special project. ”
2. Issues related to the application of law to construction engineering design contractsProvisions of the Civil Code
The construction engineering design contract is essentially a contract contract, which is specifically stipulated in Chapter 18 "Construction Project Contract" of the Sub-Provisions of the Civil Code and Contract Series. The main ones are as follows:Article 788"A construction contract is a contract in which the contractor carries out the construction of the project and the employer pays the price. Construction contracts include engineering survey, design and construction contracts. Article 794 "The content of a survey and design contract generally includes clauses such as the time limit for submitting documents such as basic materials and budget estimates, quality requirements, costs, and other conditions for cooperation. ”Article 800"If the quality of the survey or design does not meet the requirements or the survey or design documents are not submitted within the time limit and the construction period is delayed, causing losses to the employer, the surveyor or designer shall continue to improve the survey and design, reduce or waive the survey and design fees, and compensate for the losses. ”Article 805"If the rework, suspension or modification of the survey or design is caused by the employer's change of plan, inaccurate information provided, or failure to provide the necessary survey and design working conditions within the time limit, the employer shall increase the cost according to the actual workload consumed by the surveyor or designer. ”Article 806If the contractor subcontracts or illegally subcontracts the construction project, the employer may terminate the contract. If the main building materials, building components and equipment provided by the employer do not meet the mandatory standards or fail to perform the obligation of assistance, resulting in the contractor being unable to carry out the construction, and the contractor fails to perform the corresponding obligations within a reasonable period of time after being reminded, the contractor may terminate the contract. After the termination of the contract, if the quality of the completed construction project is qualified, the employer shall pay the corresponding project price in accordance with the agreement; If the quality of the completed construction project is not up to standard, it shall be handled with reference to the provisions of Article 793 of this Law. ”Article 807"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. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the price of the project, or may request the people's court to auction the project in accordance with law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. The price of the construction project shall be compensated in priority with respect to the price of the project at a discount or auction. ”Article 808"Where there are no provisions in this chapter, the relevant provisions of the contract shall apply. ”The difference between a construction engineering design contract and a construction engineering construction contractThe construction contract refers to the agreement signed between the construction unit (employer) and the construction unit (contractor) to clarify the rights and obligations of both parties in order to complete the construction tasks of the agreed construction project. The provisions of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (hereinafter referred to as the "Judicial Interpretation of Construction Contracts (I))" are mainly applicable to construction contract disputes, while construction engineering design contracts do not belong to the scope of construction and do not apply to the provisions of the above-mentioned judicial interpretations. (1) Exclusive jurisdiction does not apply to disputes over construction engineering design contractsAccording to paragraph 2 of Article 28 of the Judicial Interpretation of the Civil Procedure Law, the jurisdiction of construction contract disputes shall be determined in accordance with real estate disputes, which shall be subject to exclusive jurisdiction, and the parties shall not agree on other competent courts. However, the construction engineering design contract does not have such provisions and does not belong to exclusive jurisdiction, and the parties may agree on a competent court in accordance with the provisions of the Judicial Interpretation of the Civil Procedure Law on the jurisdiction of contract disputes. (2) The construction engineering design contract cannot break through the relativity of the contractArticle 43 of the Judicial Interpretation (I) of the Construction Contract stipulates that the actual contractor may sue the employer for payment of the project price within the scope of its arrears, which can break through the relativity of the contract. However, in a construction engineering design contract, the designer can only claim the design fee from the counterparty of the contract according to the contract, and cannot break through the relativity of the contract. (3) The construction engineering design contract cannot obtain the priority right to be compensated for the project priceArticle 807 of the Civil Code stipulates that if the employer fails to pay the price as agreed, the contractor may exercise the priority right to be compensated for the project price if it meets the conditions. The subject exercising the priority right to be compensated for the project price stipulated herein is generally considered to be limited to the construction contract contractor and not the designer, except for the general contracting contract. Therefore, the designer in the construction engineering design contract cannot exercise the priority right to be compensated for the construction project price.
3. The main points of dispute in construction engineering design contract disputesThe validity of construction engineering design contracts
The validity of the contract is the primary issue to be resolved in construction engineering design disputes, and it is also the key issue in many cases. In addition, there are still a large number of design companies that do not have the qualification requirements to undertake construction engineering design work in the market. Therefore, the issue of contract validity is both a difficult and an important point. The main reasons affecting the validity of the contract are:Violation of qualification management regulationsFor example, if there is no qualification, the qualified contracting business is borrowed, or the low qualification is borrowed from the high-qualification contracting business.
Subcontracting or illegal subcontractingSome designers subcontract all the schematic design, preliminary design, and construction drawing design to a third party, or hand over some of the work to a third party to complete.
Failure to conduct bidding in accordance with the law
On the issue of the validity of Sino-foreign cooperative design contracts. There are also foreign-related disputes over Sino-foreign cooperation projects in the field of engineering design, mainly in which design links can foreign enterprises participate in. Article 3 of the Interim Provisions on the Administration of Foreign Enterprises Engaging in Construction Engineering Design Activities within the Territory of the People's Republic of China stipulates that "if a foreign enterprise provides construction engineering design services such as the preparation of preliminary design (basic design) and construction drawing design (detailed design) documents for construction projects within the territory of the People's Republic of China in the form of cross-border delivery, it shall comply with these Provisions." These provisions do not apply to the schematic design before the preliminary design (foundation design) of the construction project is provided. Article 4 stipulates that "when a foreign enterprise undertakes the design of a construction project within the territory of the People's Republic of China, it must select at least one Chinese design enterprise (hereinafter referred to as the Chinese design enterprise) that holds the construction engineering design qualification issued by the construction administrative department to carry out the Sino-foreign cooperative design (hereinafter referred to as the cooperative design), and undertake the design business within the scope of the qualification license of the selected Chinese design enterprise." ”
So,The schematic design before the preliminary design of the construction project does not stipulate the specific access conditions, nor does it stipulate that the corresponding design qualifications must be possessed, so the foreign enterprise can directly undertake the scheme design stage, but the design in the subsequent stage needs to adopt the method of Sino-foreign cooperative design.
Disputes related to the termination of construction engineering design contracts
Disputes over termination mainly focus on whether the reasons for terminating the contract have been fulfilled and the determination of the amount of work that has been completed at the time of the termination of the contract.
Whether the reasons for terminating the contract are fulfilled or not is mainly focused on determining whether the conditions for statutory or agreed termination are met.
Design Fee Disputes
Such disputes mainly focus on the question of how the amount of design costs is calculated.
The difficulties lie in the determination of the design workload, the impact of the employer's request for change or the employer's request for error on the design cost, the determination of the design cost in the case of invalid contract, and the appraisal of the design fee.
The court's determination of the workload is generally determined based on the progress of the work and the contract, and some cases need to be determined through appraisal procedures. The design workload is mainly based on drawing design drawings and preparing design documents, and the determination of workload is generally based on the design task book agreed in the contract as the standard for judging the progress and workload of the design work.
Design quality disputes
Such disputes mainly focus on whether the design results meet the contractual requirements, including whether they meet the requirements of scope, content and depth, whether the design results have quality problems and possible appraisals, and whether the quality compliance with the agreed standards is based on compulsory review. The difficulties mainly lie in the identification criteria of design quality defects, the identification of who is responsible for quality defects in different design stages, whether the input medium and environmental conditions have an impact on the design quality, the division of responsibilities of design subcontracting in EPC projects, the identification of design quality, and the identification of design subcontracting in construction project quality accidents.
Design schedule disputes
Design duration disputes are relatively common, but more responsible. Due to the more technical factors in the design work, the process of the designer implementing the employer's ideas into drawings also requires many communications, and even many of the initial ideas of the employer are relatively vague, making it difficult to define the responsible entity for the design delay. Under normal circumstances, the employer and the designer will make a special agreement on the approximate construction period and possible unexpected factors in the contract.
Intellectual property disputes
The design drawings contain the intellectual achievements of the designer, and under normal circumstances, the design contract of both parties will stipulate the ownership of intellectual property rights. Under special circumstances, in the bidding, the bidding documents delivered by the unsuccessful bidder often contain intellectual achievements such as design plans and renderings, and the arbitrary use of the tenderer may involve intellectual property infringement unless the bidder expressly agrees. February**Dynamic Incentive Plan Disclaimer: This article represents the author's views only and should not be regarded as formal legal advice issued by the firm or lawyers.
Article contribution: lawyer Liao Jinyu.