If it has been agreed that the project price is fixed, can either party apply for appraisal of the project cost?

2022-07-26 0 By

Article 28 Where the parties agree to settle the project price at a fixed price and one party requests the appraisal of the cost of a construction project, the people’s court shall not support it.Brief Introduction Of the case The plaintiff and the defendant signed the “××× Central Air Conditioning Installation Contract” on June 5, 2018 after bidding and tendering, agreeing that the plaintiff shall carry out the installation of ××× Central air conditioning for the defendant.The contract agreed that the project quotation includes the installation cost and the total contract management fee, the total contract price is 2984061 yuan.The contract adopts the lump sum contract. In case of any increase or decrease, both parties shall make adjustments according to the actual conditions.Article 3.3 of the Contract stipulates that “the project is a one-off project, and the amount and cost agreed in the contract will not be adjusted unless the amount and cost are increased due to party A’s reasons.”On September 27, 2019, both parties signed a Supplementary Agreement through consultation on the content of power supply and distribution installation added to the central air conditioning contract. The provisional cost of the supplementary Agreement is 710,000 yuan. The provisional total price of the agreement is only used as the basis for the payment of advance payment.The plaintiff then handed over all equipment and information to the defendant and the property management unit on November 27, 2019.It passed comprehensive acceptance on May 29, 2020.The defendant successively paid the plaintiff a total of 2,0888,842 yuan for the installation project, and 355,000 yuan for the electrical part of the installation project.Because of the “supplementary agreement” settlement to finish with the actual quantity according to solid settlement, so the need to please the cost of the third party consulting agency identified, the requirement for the previous “XXX central air-conditioning installation contract” with the “supplementary agreement” two quantities identified, the plaintiff to got the project payment agreed to identify all requirements as soon as possible.After that, both parties jointly signed the Construction Project Cost Consulting Contract with the third party guizhou ××× Construction Consulting Co., Ltd. on March 30, 2021. Article 10 of the contract stipulates that “once the consultant’s final report is issued, it shall have definite and effective legal effect on all parties to the contract.Neither party shall deny the legal effect of the final report on the grounds that it has not signed and sealed the final report.”On May 31, 2021, guizhou ×××× Construction Consulting Co., LTD., the third party, issued the Audit Report, and the approved amount was RMB 26,85343.7, and the reduced amount was RMB 6417,03.3.On June 4, 2021, the plaintiff sent a query letter to the third party on the audit results, arguing that the report violated the audit rules, that a large number of audit documents were missing, and that a large number of contracts for the lump sum price were arbitrarily reduced, and the audit results were not recognized.Now the plaintiff sues the defendant to pay the arrears of 805,697.17 yuan for installation engineering and 17,5116.94 yuan for electrical engineering.The court point of view according to the Supreme People’s Court on the trial of the construction project construction contract dispute case of the interpretation of the applicable legal issues (a) “article 28 provisions of the” parties agreed to settle the project price according to the fixed price, a party to the construction project cost for identification, the people’s court will not support.And article 31 “If the parties dispute some of the facts of the case, only the disputed facts shall be appraised…”.In this case, the price agreed in “××× Central Air Conditioning Installation Contract” is the fixed price, and there is no need for cost appraisal, which has no effect on the fixed price.The plaintiff voluntarily accepts RMB 17,5116.94 as the additional amount of the Supplementary Agreement in the Audit Report of SETTLEMENT of ××× Central Air Conditioning Installation Project, which is recognized by the court.Lawyer’s point of view in the construction project contract, the type of construction project is different, the agreed settlement of the project is also a variety of ways, one of the most common is fixed price settlement.Agreed settlement of project payment at a fixed price refers to the agreement between the employer and the contractor to settle the project payment in the form of lump sum price after the project quantity is budgeted.Agreed to pack dry total price, but in practice, often the party puts forward the requirement that undertakes appraisal to project cost, this kind of circumstance, can the court permit?According to the Supreme People’s Court about the trial of construction project construction contract dispute case applicable law problem of (a) the provisions of article 28, the developer and contractor in the contract for construction project, according to the fixed price as a means of settlement and payment, any one party to the project cost and then to identify the request, the court will not support,It shall be determined according to the fixed price in the construction contract of both parties.However, there are exceptions. For example, in the case mentioned above, when the contract modification or change leads to the increase or decrease of the project quantity, the court allows the parties to appraise the project cost again.