What are the legal risks of internal contracting contracts for construction projects? How to avoid i

The risk prevention measures for internal contracting of construction enterprises are:

1.Strict credit review of contractors.

The credit review of the contractor is the first step in preventing and controlling the risks of contracting. Those project managers who are economically, technically, and administratively incapable of performing the contract shall be disqualified from contracting.

2. Implement guarantee undertaking to control risks within the enterprise.

The construction enterprise shall sign a contract with the project manager and a guarantee agreement at the same time.

3.Control project funds and prevent misappropriation of funds.

The loss of capital control is one of the main reasons for the economic risks of construction enterprises. Therefore, construction enterprises must strictly supervise the use of project funds by contractors. It is best to put the project funds into the enterprise account, and then allocate them to the project department responsible for the construction of the contractor after being reviewed by the enterprise.

4. Strengthen project quality management and do a good job in cost control.

Construction enterprises should start with cost control, supervise and help project managers to do a good job in cost control. For the affiliated project department, it is necessary to strictly manage, so to speak, the biggest risk of the enterprise is the first to be affiliated with the project department.

5. Exercise the right of recourse in a timely manner in accordance with the law.

If the contractor causes losses to the construction enterprise due to breach of contract or tort, the construction enterprise shall, in accordance with the provisions of the internal contracting contract, promptly file a lawsuit with the people's court to ensure that the legitimate rights and interests of the enterprise are not harmed.

Legal Analysis: The risks of project contracting are as follows:

1. The risk of paying for the project;

2. Risk of changing the auction price of Liang Kuan;

3. Settlement risk of incomplete information;

4. The risk of frequent changes;

5. The risk of delay and non-settlement;

6. Quality risk;

7. Subcontracting and subcontracting risks;

8. Accident handling risk;

9. Risk of Claims.

Legal basis: Article 24 of the Construction Law of the People's Republic of China advocates the implementation of general contracting of construction projects, and prohibits the dismemberment of construction projects and the issuance of contracts. The contractor of the construction project can be contracted to a general contractor for the survey, design, construction and equipment procurement of the construction project, and one or more of the survey, design, construction and equipment procurement of the construction project can be awarded to the general contractor of the project; However, a construction project that should be completed by one contractor shall not be dismembered into several parts and awarded to several contractors.

Legal Analysis: The risks of project contracting are as follows:

1. The risk of paying for the project;

2. Risk of price change;

3. Settlement risk of incomplete information;

4. The risk of frequent changes;

5. The risk of delay and non-settlement;

6. Quality risk; Tell the hand.

7. Subcontracting and subcontracting risks;

8. Accident handling risk;

9. Risk of Claims.

Legal basis: Article 24 of the Construction Law of the People's Republic of China advocates the implementation of general contracting of construction projects, and prohibits the dismemberment of construction projects and the issuance of contracts. The contracting unit of the construction project may contract the survey, design, construction and equipment procurement of the construction project to a general contractor of the project, and may also contract one or more surveys, designs, constructions and equipment procurement of the construction project to a general contractor of the project; However, a construction project that should be completed by one contractor shall not be dismembered into several parts and awarded to several contractors.

Legal Risks of Engineering Outsourcing:

1. The legal risk of advance payment of labor remuneration, when the contractor does not have the construction qualification and does not have the main qualification of the employer, and the remuneration of the workers hired by him is in arrears, the laws and regulations will place the responsibility of paying labor remuneration on the qualified construction enterprise at the next higher level;

2. The risk of being held accountable for refusing to pay labor remuneration;

3. The risk of settlement of project payment between the contractor and the subcontractor.

[Legal basis].Interim Measures for the Settlement of Construction Project Prices" Article 14.

After the completion of the project, the two parties shall settle the completion of the project in accordance with the agreed contract price and the adjustment of the contract price and the claims.

1) The settlement method of project completion.

The project completion settlement is divided into unit project completion settlement, single project completion settlement and total construction project completion settlement.

What are the specific risks of project contracting?

1. The risk of paying the project money in the early stage of arrears, in addition to the collection, should be collected by means of legally recognized letters, if there is no effect, the owner's financing ability and performance ability should be analyzed, and its breach of contract should be clarified, and further demand and claim. According to the capital turnover of the project department, a deferred payment agreement can be signed with the employer. For owners who do not pay for the project without reasonable reasons, measures should be taken to control the process of project construction and resolve it through legal channels.

2. If there is a change in the engineering design risk, it is very likely to lead to a change in the price, and the project department shall submit a report on the change of project price to the employer within 14 days after the change is confirmed, and require the other party to sign for it.

3. The settlement risk of incomplete information should be properly preserved in the project data, including the following aspects:

1) Construction drawings;

2) Documents, agreements, notices and other materials related to negotiation and change;

3) Procedures issued by the employer and the supervising engineer. The project data shall be signed and confirmed by the project department to set up a special person to keep it.

4. The risk of frequent changes The change of the main person in charge of the employer has a great impact on the contractor, and it goes without saying that all the relationships accumulated in the early stage have come to naught, and everything has to be started all over again. The employer shall issue a notice of change with the official seal to the contractor 7 days in advance, and the project manager shall promptly request the employer for a "Notice of Personnel Change" with the official seal.

5. If the employer fails to settle the settlement at the agreed time, it shall bear the relevant costs. After passing the completion and acceptance, the settlement report shall be submitted in a timely manner, and the representative of the employer shall sign for receipt, and if it does not reply within 28 days, the employer shall constitute a breach of contract. In the contract, only the completion time is agreed, and the delivery time is not agreed.

After the two parties reach an agreement, if the employer fails to pay all the payments except for the clearance quality deposit as agreed, the contractor has no obligation to deliver.

6. The quality risk establishes a complete written material for the acceptance of the sub-project and the concealed project, and the acceptance record shall be signed and confirmed by the representative of Party A, the supervisor and the contractor. The confirmation materials to be supplemented in the later stage must be confirmed within 14 days and properly kept.

7. Subcontracting and subcontracting risk subcontracting must be agreed in writing by the employer, and all projects cannot be subcontracted, and must be subcontracted to a single wheel with corresponding qualifications; The subcontractor shall not subcontract the contracted project for the second time. And strictly review the contracting qualifications, business licenses, personnel qualification certificates, etc. of the subcontractor. For the subcontracted works designated by the owner, it is necessary to clarify the method of appropriation, the proportion of the matching fee, the benchmark and time, and the safety responsibilities to be assumed.

8. Accident handling risks: After the accident occurs, the injured should be rescued as soon as possible, dial 120 first aid** and report, and pay attention to protecting the accident scene; When it is necessary to move an object on the spot, it should be marked. The project manager is the first person responsible and should try to take measures to minimize the impact.

9. Claim riskIf the employer has the untimely allocation of project progress payment, the arbitrary change of the project within the scope of the contract, the untimely provision of drawings, the failure to organize acceptance at the agreed time, and the untimely supply of materials, the contractor can make a reasonable claim.

1) The risk to be borne by the contractor as expressly specified in the contract. This risk is generally specified in the terms of the contract and should be borne by the contractor. If the contract notice stipulates that the contractor will not be compensated for the change of works within 5% of the contract amount, the increase in the amount of work within this range is the contractor's risk.

2) The risk of incomplete, incomplete and unclear contract provisions, and unclear responsibilities and rights between the parties to the contract. In the process of implementing such a contract, it will lead to disagreements between the two parties, which will eventually lead to losses for the contractor. If there is no penalty clause in the contract for the owner to default on the project payment.

For example, the contract does not make specific provisions on some issues, and only uses the words "to be resolved through negotiation". Contractors should pay attention to these risk clauses and reasonably analyze the risks they take.

3) The contract clause unilaterally proposed by the owner for the purpose of transferring the risk, which is too harsh and has an unbalanced balance of responsibilities and rights. For example, the contract stipulates that "the owner shall not be liable for delays in the works due to third-party interference", which effectively transfers the risk of delays in the works caused by third-party interference to the contractor.