Real estate perspective... In the field of construction, how should the pricing method be determined when applying for appraisal without agreement?
Published:
2023-11-20
In the dispute over the construction contract of the construction project, the contractor and the contractor have a dispute over the cost of the project, in the absence of a contract or the contract on the unit price and the total price are not agreed upon, one party applies for appraisal, and what criteria should the appraisal institution use to determine the cost of the project?
In the dispute over the construction contract of the construction project, the contractor and the contractor have a dispute over the cost of the project, in the absence of a contract or the contract on the unit price and the total price are not agreed upon, one party applies for appraisal, and what criteria should the appraisal institution use to determine the cost of the project?
2. related cases
According to Article 5.3.4 of the Code for Appraisal of Construction Project Cost, if there is no agreement on the pricing basis and pricing method in the appraisal project contract, the appraiser may propose to the client the suggestion of "appraisal by reference to the pricing basis, pricing method and market price information applicable at the same time in the appraisal project location", and the appraiser shall conduct the appraisal according to the decision of the client.
In general, if the contract price or remuneration is not clear, it shall be performed in accordance with the market price of the place of performance at the time of the conclusion of the contract.
1. Case No.: Supreme People's Court (2017) Supreme Law Minshen No. 4875
The Court held that:On the question of whether the appraisal opinion No. [2014] 0606-259(B) adopted by the second-instance judgment of the 1. to determine the project price involved in the case based on the market price is correct. Article 62 of the the People's Republic of China Contract Law (II) stipulates that if the price or remuneration is not clear, it shall be performed in accordance with the market price of the place of performance at the time of the conclusion of the contract. The provision excludes the application of market prices in cases where the subject matter of the contract is required by law to implement government pricing or government-guided prices to determine the price of the work. The second paragraph of Article 16 of the Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Contract Disputes and Article 11 of the Interim Measures for the Settlement of Construction Project Price have clear and specific provisions on the settlement of project price by reference to the pricing method or pricing standard issued by the administrative department, and the project involved in the case does not conform to the relevant legal provisions, therefore, the corps six construction company on the 1. of the second instance judgment to adopt the market price to determine the case of the project price applicable to the legal error, there is no legal basis, can not be established.
2. Case No.: Xinjiang Uygur Autonomous Region Higher People's Court (2017) Xinmin Zhong No. 204
The Court held that:The second paragraph of Article 62 of the the People's Republic of China Contract Law stipulates that if the parties are not clear about the contract price or remuneration, and cannot be determined in accordance with Article 61 of the Contract Law, the market price of the place of performance at the time of the conclusion of the contract; If the government pricing or government-guided price should be implemented in accordance with the law, it shall be performed in accordance with the regulations. In this case, the Corps Six Construction Company did not sign a written contract with Zhang Benzhi and Li Yongzhi, clearly agreeing on how the project involved in the construction of Zhang Benzhi and Li Yongzhi should be priced. According to the above-mentioned legal provisions, the project involved in the case shall be performed in accordance with the market price of the place of performance. The Sixth Construction Company of XPCC advocates that in accordance with Article 11 of the "Interim Measures for the Settlement of Construction Project Prices" formulated by the Ministry of Finance and the Ministry of Construction, both parties shall settle accounts at a fixed price. Article 11 of the Interim Measures for the Settlement of Construction Project Price stipulates that the settlement of the project price shall be handled in accordance with the contract, and if the contract is not agreed or the agreement is not clear, the issuing and contracting parties shall negotiate with the documents in accordance with the following provisions: (a) the relevant laws, regulations and rules of the State; (II) to the relevant provisions of the construction administrative department of the State Council, provinces, autonomous regions, municipalities directly under the Central Government or relevant departments, such as the project cost pricing standards and pricing methods; the contracts, supplementary agreements, change visas and on-site visas for (III) construction projects, as well as other valid documents approved by the economic development and contractors; (IV) other materials that can be relied on. The above provisions also make it clear that in the absence of an agreement on the settlement of the project price in the contract, it should first be determined in accordance with the relevant laws, regulations and rules of the State. The project in question is not a government-priced project, and the construction project quota standard is determined by the regional construction authority according to the average value of the construction cost of the local construction market, which belongs to the scope of government-guided price, and is an arbitrary norm and not mandatory. In the first instance appraisal of this case, the appraisal agency conducted multi-party inquiry, including relevant government agencies (Changji Prefecture Cost Station), large construction companies, construction labor service companies, individual contractors and other project cost consulting units, combined with the scale of the project involved, Structure, floor height and other factors, as well as the construction area, construction period, etc., to determine the market price after comprehensive revision. The market price is closer to the actual cost of the construction project and is fairer to both parties. Therefore, the court of first instance applied the second paragraph of Article 62 of the Contract Law and determined that the price of the project involved was calculated based on the market price.
3. Case No.: Supreme People's Court (2011) Minti Zi No. 104
The Court held that:First, the price of the project should be determined by appraisal in this case. Although the three construction contracts signed by the parties are invalid, in the case that the project has been completed and delivered for use, according to the principle of the treatment of invalid contracts and the particularity of the construction behavior, the actual construction costs of the ring shield company should be treated by way of discount compensation. In order to resolve the disputes between the parties, the court of first instance made a judicial determination of the project price disputed by the parties by way of entrusted appraisal and based on the appraisal conclusion issued by the appraisal agency.
Second, the fixed price should not be used as the basis for the settlement of the project price in this case. First of all, the construction project quota standard is determined by the local construction authorities according to the average of the construction cost of the local construction market, is to complete a certain unit of measurement of the product of labor, materials, machinery and capital consumption of the prescribed amount, is the government guidance price category, belongs to the arbitrary norms rather than mandatory norms. In the absence of an agreement between the parties to use a fixed price as the price of the project, it is generally not appropriate to determine the price of the project at a fixed price. Secondly, the determination of project cost on the basis of quota does not take into account the technical expertise, labor productivity level, material procurement channels and management capacity of the enterprise, this pricing model can not reflect the construction, technology and management level of the enterprise. In this case, Huandun Company impersonated the enterprise name and construction qualification of the Fifth Engineering Company of China Ninth Metallurgical Construction Company to contract the project involved in the case. If the fixed price is used, it is not in line with the principle of fairness. Third, the quota standard often cannot keep up with the changes in market prices, and the market price information issued by the construction administrative department is closer to the market price and closer to the actual cost of construction projects. In addition, the steel structure project involved in this case is a new type of construction project compared with the traditional construction project, the project quota is not complete enough compared with the traditional construction project quota, according to the practice of steel structure project cost appraisal, the conclusion of the market price appraisal is closer to the cost cost, which is more conducive to protecting the interests of the parties. Finally, according to the provisions of item (II) of Article 62 of the the People's Republic of China contract Law, if the parties do not clearly agree on the contract price or remuneration and cannot be determined in accordance with the provisions of Article 61 of the contract Law, they shall be performed in accordance with the market price of the place of performance at the time of the conclusion of the contract; if the government pricing or government-guided price should be implemented in accordance with the law, it shall be performed in accordance with the regulations. The project involved in this case does not belong to the government's pricing. Therefore, the market price as the basis for the performance of the contract is not only more in line with the law, but also fairer to both parties. The conclusion of the appraisal at the market price shall be used as the basis for the final decision. The 1. of the second instance and the original retrial judgment not to accept the appraisal conclusion issued at the market price is improper and should be corrected.
3. Summary
The cost of the project shall be identified if there is a dispute between the contractor and the contractor over the cost of the project, if the contract is not signed or the unit price and total price are not agreed upon in the contract. When appraisal institutions conduct project cost appraisal, most of the project cost determined on the basis of quota fails to reflect the construction, technology and management level of the enterprise, and the quota standard often fails to keep up with the changes in market prices. however, the market price information released by the construction administrative department conforms to the relevant provisions of the Civil Code, is closer to the market price, is closer to the actual cost of the construction project, and is more fair to both parties. Therefore, in the construction contract dispute, the contractor and the contractor have no agreement on the pricing method, after applying for appraisal, the appraisal institution shall make the appraisal conclusion according to the fixed price and the market price respectively, in determining the project price, the project price shall generally be determined by the market price.
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