How to prevent the risks of the survey and design unit delay?

In survey and design activities, the dispute over time is one of the typical types of disputes. In the process of dispute resolution, survey and design units are often in a weak position due to the impact of the competitive environment and market status. Therefore, in order to safeguard their legitimate rights and interests, it is particularly important to prevent the risk of construction periods.

The survey and design period refers to the period of survey and design content agreed in the contract. Focusing on the duration of the construction period, the key lies in the processing of three time nodes, that is, the identification of the date of survey and design, the identification of the completion date, and the deferred situation and time determination.

Determination of the start date of survey and design work

The date of survey and design refers to the beginning of the calculation of the survey and design period. Generally, there are two situations: contract agreement and start notification. In practice, in addition to the above situations, due to the changes in actual performance, it often involves the situation of the starting conditions and whether it affects the start time, and how to determine the start date under the notification of the start work. When the contractor and the surveyor and the designer are disputed about the date of survey and design, different circumstances shall be distinguished.

The contractor issued the identification of the date of work or similar documents to the surveyor and the designer.

Starting work notice as the basic information of the contractor's request for the surveyor and the designer is a factual document that confirms the start of work. Compared with the starting time of the contract agreed, the starting work notice issued by the contractor is often issued in a timely manner based on the situation and the need for themselves. Date requirements. Therefore, without other evidence information is sufficient to overthrow the start work notification, in principle, the start time that starts work notification or similar documents should be used as the starting date of the engineering survey and design.

However, it should also be noted that because the start work notification is generally issued by the contractor, it is a unilateral behavior of the contractor. It is often based on the consideration of its own interests such as the project period. When people start work, they will damage the legitimate rights and interests of the investigators and designers. Therefore, in order to safeguard the legitimate rights and interests of the surveyor and designer, after the work notice is issued, if there is no survey and design conditions, the time of survey and design conditions shall be based on the survey and design conditions. For example, Guigang Central Courtyard (2016) Gui 08 Min No. 646 Civil Judgment believes that the appellant asked the appellant to confirm the relevant issues and workloads and costs, and the appellant did not reply and handle In the process, the appellant did not respond, confirm and resolve the questions and requirements raised by the appellant, which affected the progress of the appellant's design. The start time of the design should be calculated as the appellant confirmed the design conditions.

Of course, involving specific projects, the conditions that need to be available when survey and design activities are implemented. It also needs to be determined in conjunction with the contract. This condition will be agreed as the obligation of the surveyer. In this case, this item does not constitute a must -have for investigating activities. For example, in design activities, prepaid or deposits are often agreed. In this case, prepaid or deposit has become a necessary condition for the implementation of design activities.

The surveyor and the designer agreed that the consent of the contractor has actually carried out survey and design activities.

The contractor issued a notice to the surveyer and the designer, or the contractor did not issue a notice of investigation and design to the surveyor or designer, and the surveyor and designer agreed Those who enter the field or start design work shall take the actual start time as the engineering survey and design start time.

It should be noted that the surveyor and the designer agreed that the contractor actually started the survey and design work, which belonged to the active behavior of the surveyor and the designer. For the active behavior of the surveyer and the designer, the consent of the contractor should be obtained. Otherwise, without the consent of the contractor, the survey and design work that the surveyer and the designer started by themselves belong to the surveyor and the designer's unilateral behavior. The contractor does not need to bear any responsibility.

The contractor did not issue a starting work notice or similar documents, and there was no relevant evidence to prove that the actual start date is determined by engineering survey and design start date

In this case, the date of determination and design activities needs to be combined with the contract signed by the two parties, the contractor's engineering survey, the approval documents and license documents, basic drawings and technical materials, underground buried underground burial required to the survey, the designer, and the designer At the time of materials and other materials, the contractor pays the prepaid payment to the surveyor and the designer, and combines the fact that whether there is a survey and design starting conditions to comprehensively consider the date of the project survey and design start date.

In the case of lack of the above situations, the contact form, meeting minutes, confirmation forms, approval documents and other information reflected by the contractor and the surveyer and the designer during the implementation of the survey and design activities need to be combined. In conjunction with the situation of the starting conditions, to comprehensively identify the date of survey and design work.

The identification of the situation of survey and design period extension

The contractor failed to provide basic information and start -up conditions in accordance with the contract agreement

Article 803 of the Civil Code stipulates: "If the contractor fails to provide raw materials, equipment, venues, funds, and technical information of raw materials, equipment, venues, funds, and technical information, . Article 5 of the Quality Management Measures for Flying Construction Engineering Survey stipulates: "Construction units shall provide necessary on -site work conditions for survey, ensure reasonable survey period, and provide real and reliable original materials. Therefore, in survey and design activities Among them, if the contractor fails to provide basic information and start -up conditions in accordance with the contract, the surveyer and the designer can postpone the corresponding construction period. To prove that it has delivered the basic information required to the design to the design of the design in accordance with the period strictly stipulated in the "Strategic Cooperation Contract", Greenland Corporation, Huaxia Company advocated Yueyue Company and Yijing Company's extension of the design results of the design of the design. The civil liability lacks reason, the Guangzhou Intermediate People's Court does not support it, and it is not improper. It is recognized.

Article 526 of the Civil Code stipulates: "If the parties bear the debt, if there is a order of performance, if the parties shall be fulfilled first, the party shall be fulfilled first, and then the party shall be fulfilled to refuse its request." At the same time, Article 803 of the Civil Code stipulates If the contractor does not provide funds at the agreed time and requirements, the contractor can postpone the date of the project. Under normal circumstances, in the survey and design contract, the payment of survey and design expenses is the corresponding payment time in accordance with the survey and design phase. Therefore, if the contractor fails to pay the corresponding survey and design costs in accordance with the contract, and the surveyor and designer cannot continue to work, the construction period should be extended.

The contractor increases the content of the contract and changes the engineering survey, design technical requirements or plan

The increase in work content and changes in survey, design technical requirements or schemes will inevitably lead to the survey and designer's survey and design activities, and the corresponding personnel, equipment, funds, etc. will change, and it will also cause delay in the construction period. In this case, in this case, the construction period should be extended. Haikou Zhongyuan (2016) Qiong 01 People's No. 166 believes that Beijing Sheng Company issued a design task letter to the Chinese and foreign construction companies on September 24, 2015, but on October 6 and November 9 of the same year The design requirements have put forward a variety of amendments. Among them, the amendments involve ... Basic issues should be determined that the requirements and standards of the design task book of Jingsheng Company will not be finally determined on November 9th. The start time should be calculated from November 10. Sinotrans' establishment of the first phase of the design plan on December 10 of the same year did not exceed 45 days of the contract agreed. Jingsheng Company advocated that the Chinese and foreign construction companies extended the design plan, and there was a major breach of contract and no factual basis.

His harsh climate conditions affect the survey site operation

The construction of the foreign industry is an important part of the survey work. Due to the nature of its outdoor open -air operations, it has greatly affected the changes in climate conditions. For example, the Dalian Maritime Court (2016) Liaoning 72 Minchu No. 541 believes that due to the special weather conditions such as severe weather, storms, and icing of the sea in the survey operation in the contract, the plaintiff can postpone the construction period, so the plaintiff's plaintiff, so the plaintiff Therefore, the extension of the delivery of survey data should not be regarded as its violation of the contract.

If the contract is not agreed or unknown, when there is strong winds, rain and snow, it can confirm whether the construction period is delayed according to the requirements of the local government or meteorological department. If the local government or meteorological department requires outdoor operations, the surveyer obviously cannot continue to implement the external industry, so the construction period should be extended.

Disadvantage of material conditions changes

The survey is mainly to find out the geology, environmental characteristics, and geotechnical engineering conditions of the construction site, which has greatly imposed a great impact on the survey activities. When an unpredictable natural material conditions, non -natural material disorders and pollutants occur, they will cause changes in survey behavior, and re -adjust the survey plan, resulting in an increase in the amount of engineering. Because this change is an unpredictable situation, the increase in engineering volume generally leads to an increase in construction period, so the corresponding construction period should be extended.

force majeure

Article 180 of the Civil Code stipulates that "force majeure is an objective situation that cannot be foreseen, cannot be avoided, and cannot be overcome." Phantomes generally include natural disasters and social emergencies such as earthquakes, tsunami, plague, floods, riots, and war. The contractor and surveyor and designer may also agree on other non -resistance situations in the special terms of the contract. Article 180 of the Civil Code stipulates: "If it cannot perform civil obligations due to force majeure, it will not bear civil liability." Therefore, if the surveyor and designer cannot continue to implement survey and design activities due to force majeure, the construction period shall be extended.

It can be seen from the above content that the above situation will affect the construction period. But when the above situation occurs, will it inevitably cause the consequences of the extension of the construction period? Article 803 of the Civil Code stipulates: "If the contractor fails to provide raw materials, equipment, venues, funds, and technical materials in accordance with the agreed time and requirements, the contractor can postpone the date The extension of the construction period is "can" instead of "should".

It is determined whether the construction period should be delayed and whether the above situation is sufficient to affect the progress of the construction period and whether the extent to which hinders the continued work. Only when the above situation causes delays to the construction period, the construction period should be postponed. If the survey venue is occupied by a third party and the contractor fails to solve the co -organizer, the surveyor cannot enter the field to implement the survey activities, which will inevitably lead to a delay in the construction period, so the construction period should be postponed. If the contractor does not pay the survey and design costs in accordance with the contract, the overdue payment time is short, or the amount of overdue payment is small, or the surveyor and the designer have solved the funding problem in other ways. Can not be extended. However, if the contractor delays the payment time, the amount of overdue payment is large, or the contractor's overdue payment has caused the investigator and the designer to operate difficulties, the unable to pay personnel wages, equipment costs, etc. The construction period should be extended. Determination of the date of survey and design results

Regarding the date of the completion of the survey and design results, we must first pay attention to distinguishing the obligation to complete the survey, design results, and the completion of survey and design contracts.

In survey and design activities, survey reports and design drawings are the main manifestations of survey and design results. In the survey contract, in addition to issuing survey reports, it is generally attached with the obligation of survey reports and construction tanks; in the design contract, there are often relevant agreement on drawing and on -site services. However, the content of the survey report, the construction tank, and the design site service are mainly subject to the progress of the project. Generally, it is determined according to the actual situation and on -site construction progress. Therefore, there is basically no controversy in the practice. In survey and design contract disputes, almost all of the disputes over the date of completion are concentrated in the dispute over the time of the submission of the submission of the investigation report, that is, the dispute over the date of the completion of the survey and design results. Therefore, the identification of the date of survey and design results discussed in this article is limited to the determination of the date of the completion of the survey report and the date of design drawings. For other contract obligations agreed in the survey and design contract The completion date of service and other contents is not within the scope of the discussion in this article.

If the experience of survey and design results is qualified, the date of acceptance is the date of acceptance.

The submission of survey and design results is only a link to complete the results of survey and design, and qualifications for acceptance are the final completion of survey and design results. Article 800 of the Civil Code stipulates: "The quality of survey and design does not meet the requirements or fails to submit the survey and design documents delayed construction period in accordance with the deadline. Or exempt survey, design fees and compensation for losses. "The survey and design results should be a qualified product. If the survey and designer submit the survey and design results, if the contractor is not qualified, the survey and designer shall continue to modify the modification Improve the survey and design results until qualified. During the duration of the survey and designer to modify and improve the results of the survey and design results, the surveyor and designer shall bear the corresponding liability for breach of contract. Only after the subcontractor is qualified can the survey and design results be completed.

The surveyor and designer submit the results of the survey and design stage. The contractor's request to enter the next stage of work shall be the date of the survey and the designer to submit the results of the survey and design stage.

One of the characteristics of survey and design is different from the characteristics of construction. There are staged work and approval. The results of the work in the previous stage are often the basis for the next stage of work. Essence For example, Article 1.0.5 of the "Construction Engineering Design File (2016 Edition)" stipulates that the design documents of the scheme should meet the needs of preliminary design documents, and the need for approval or submission of schemes should be met. The preliminary design document should meet the needs of the design document design document, and the needs of preliminary design approval should be met.

In practice, because the contractor often pays attention to the final completion of the results, the staged results rarely have written information with qualified acceptance. In this case, the contractor directly requests the surveyor and the designer to enter the next stage. Since the development of the next stage of work is generally carried out on the basis of the results of the previous stage of work. It should be determined that the contractor has recognized the results of the previous stage with its own behavior. The date of the survey and designer should be submitted to the results of the survey and design of the results.

The surveyor and designer have submitted the results of survey and design, and the contractor delayed the acceptance or used it without authorization.

Organizing acceptance is the legal obligation of the contractor, and the acceptance is also one of the payment nodes for survey and design costs. In practice, the purpose of the contractor's delay in acceptance is often to delay paying the corresponding survey and design costs. Article 159 of the Civil Code stipulates: "Civil legal acts with conditions, those who have not been properly prevented by their own interests in their own interests are deemed to have achieved conditions." The contractor's delay in acceptance is actually the achievement of the payment conditions for their own interests. In this case, the surveyor and designer shall be determined to submit the survey and design results as the completion date.

Article 33 of the "Regulations on the Management of Construction Engineering Survey and Design" stipulates: "If the construction drawing design document is not reviewed and approved, it shall not be used." That is, the construction drawing design document (including survey documents) shall not be used without any review. However, in practice, due to the project progress requirements, there are often unsatilers who have unauthorized use of surveys, design results, or directly using survey and design results at the same time. In this case, the contractor's unauthorized use of unauthorized use shows that the surveyor and the designer have completed the corresponding survey, design obligations, and submitted the corresponding survey and design results, and the contractor recognizes it with his own behavior. The survey and design results of the survey and designer show that the survey and designer's survey and design results meet the requirements of the contractor. Therefore, the date of the survey and designer should be submitted to the survey and designer as the date of completion. Practical precautions

Combined with the above content of the risk of construction, as a surveyer and designer, you need to pay attention to the following points in practical operation to avoid the risk of delay in the corresponding construction period.

About delivery time

There are two agreements for the delivery time of the common survey and design results: one is a clear specific date, that is, to clarify the delivery of a month and one day; the other is the period of the agreed delivery, that is, how many days of delivery are agreed. Under normal circumstances, it is recommended to use the delivery cycle. If a clear delivery date is agreed, on the one hand, the start date of survey and design activities cannot be clear; on the other hand, if the process of extension of the construction period is limited, the delay time will not be determined because of the restrictions of the delivery time.

At the same time, the use of the provisions of the delivery cycle, the surveyor and the designer can set the risks of the investigator and designing artificial period by setting up the determination of the starting date. For example, during the design activity, the time to submit the concept stage can be agreed to be "contract signing, one day after receiving the full set of basic information and deposit of Party A", the time of submission of the plan stage can be agreed as "Party A confirms the concept stage design file and and "One day after the payment concept stage", etc., so that the agreement can maximize the risk of designing people overdue.

Regarding the division of the completion cycle

In practice, in addition to the normal completion cycle, because the survey and design results are more reflecting the thoughts and intentions of the contractor, it is inevitable that due to changes required by the contractor, the results need to be adjusted multiple times, which leads to postponement of the construction period. For example, in the design activities, it will involve the time modification time of drawings, the time of the contractor's review, the government's map review time, etc. This time will generally occupy some of the submission time. If the time is not clearly agreed in the contract The extension of the construction period will cause controversy. Therefore, in the delivery terms, it is recommended to clearly agreed to eliminate the terms outside the drawing. The time is not included in the design cycle. "

The agreement on the signing clause

The signing terms are mainly agreed in the contract terms, contact information, and mailing address of the contractor designated by the contractor. When the signing clause is agreed, pay attention to the permissions of the signature personnel, especially the confirmation permissions on survey and design results. In survey and design activities, only by the contractor's effective confirmation of the survey and design results can the survey and design results be regarded as the completion of the survey and design results, and the date of survey and design has been confirmed. In this way, the contract stipulates that the signature of the contract can be regarded as the contractor has confirmed the survey, design results, and the date of completion, and avoid controversy in the dates of the completion of the results in the later stage.

At the same time, it is recommended that the surveyor and designer agreed to the reception method of e -mail in the contract. The main carrier of survey and design results is survey reports, design drawings, etc., which are suitable for transmission in the form of electronic data. The email mailbox can effectively solve the problem of not signing the survey and design results of the contractor.

Phase

During the performance, relevant information involving survey and design activities should be kept. In response to the starting date, the surveyor and designer shall communicate with the contractor in time and issue a notice. If the contractor does not meet the starting conditions of the contract when issuing a notice, the letter shall be replied in a timely manner to explain that the starting conditions are not available for the time being, and the starting time for the start of the contract as the start time of the investigation and design activities.

During the implementation of survey and design activities, the facts that cause delay in the construction period should be confirmed in time. For example, if the contractor increases the volume or change requirements of the project, the contractor shall be required to issue a notice in writing. The surveyor and the designer shall also give the contractor's notice in a timely manner and advocate a reasonable survey and design period. For the case where the contractor did not post written information, the surveyer and designer could fix the actual situation in time through WeChat, mailbox or video, recording and other methods.

For the confirmation of the completion date, when the surveyor and the designer submit the results, they need to go through written procedures with the contractor to confirm the completion date of the survey and design results. If the contractor does not provide confirmation procedures without authorization, the surveyor and the designer shall timely fix the evidence used by the contractor to use without authorization. If the design drawings used without authorization, the facts of unauthorized use can be confirmed by notarization at the construction site.

As one of the common disputes in survey and design activities, from the perspective of proof, it is also one of the most commonly used ways to restrict investigators and designer behaviors.In the process of survey and designer, in the process of daily contracts and performances, they need to attach importance to the determination of the date of survey, design work, the date of completion, and delay time, and to have a sense of evidence to protect their legitimate rights and interests.(The author Ding Yiming from Suzhou Golden Mantis Building Decoration Co., Ltd.) Source: "China Survey Design" magazine

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