摘要(英) |
Traditionally, when most of our governmental agencies award a
construction contract, they often adopt a lump sum contract to
stipulate the rights & obligations between both owner and
contractor. In terms of the contract conditions or conventions
made by the agency in charge, most of risks in the lump sum
contract are almost shifted to the contractor, which not only is
suspected to be unfair but also is doubtful if the rights &
interests of the contractor could be assured after winning the
bid as the agency in charge decides a “lump sum contract” with
the lowest fixed price as its procurement contract because
of the non-normal competition mean of “winning a award with a
low bid price” in the domestic construction market for a long
time. If the actual quantity in the final account is different
from that of the contract, there will be more disputes. The
purpose of this research is to prevent any dispute from
occurring again prior to contract signing.
Based on legal theorems and principles, this article is to study
the dispute over the lump sum contract generally adopted by the
agency in charge and the contractor. Through a literature
review, we can understand each scholar’s practical experiences,
concepts and definitions for the lump sum contract. With the
collection of domestic public construction contract models after
the implementation of Procurement Act and with the analysis of
practical judgment cases, we study the dispute over the
inconsistency between the actual quantity and the quantity
provided in the lump sum contract. According to the
“Contracting”-related regulations in the “Kinds of Obligations”
of Civic Law and with reference to the legal effect of foreign
contract conditions, we suggest to modify the blind spot in the
contract under our existed procurement system in expectation to
achieve the spirit of contract equality and reciprocity. For the
government’s traditionally public constructions, because of a
wide status gap between Party A and Party B, the Party A’ is
easy to be dominant in the whole contract making and the
construction pricing with its superior status, which is
obviously unfair for the final accounting of the actual
quantity. After discussing and studying, we think the nature of
lump sum (on lowest fixed price) contract shall be clearly
defined in the contract and the procedure for performing the
contracts, which are in different natures, shall be adjusted
according to different contract payment. To a certain extent
which the Party B’s quantity variances are identified without
demur, it shall consider the overall profitability level in the
construction industry. The contract that the agency in charge
defines as a lump sum contract shall carry through the spirit of
not making up a deficiency for the final accounting of quantity
variances.
In conclusion, this research suggests a more diversified
dimension for solution, providing some potential directions,
definitely clarifying the rights & obligations between both
owner and contractor in each stage of procurement and contract
execution, and reducing the occurrence of disputes resulted from
quantity variances in the contract for the reformation of our
construction industry and the modification of legal construction
system in future. |