合同与招标文件中工程量清单不一致的探讨

Discussion on inconsistent BOQ in contract and bidding document

建设工程合同中工程量清单与招标文件中工程量清单不一致在实务中屡见不鲜,使得工程结算争议不断。有些招标人在合同中规定招标文件是合同文件的一部分,甚至规定招标文件优先于投标文件具有解释权。也就是说招标人接收了投标人的提交的投标文件,却要承包人按招标文件进行结算。无论是住房城乡建设部、发展改革委员会,还是国际工程师协会的通用合同条件中,招标文件都不构成合同文件。前述的这种做法有悖于公序良俗。发包人要求承包人以合同规定的方法、按照公认的良好习惯、以恰当熟练和谨慎的方式履行合同,承包人当然有理由要求发包人按照合同、以公序良俗进行合同结算,工程结算中的蛮横无理是不能接受的。本文讨论工程量清单在合同中的性质、工程量清单不一致问题的发生原因,以及在此种情况下的工程结算。本文还分析了两个具有代表性的案例,由于工程合同的复杂性,需要丰富合同管理和工程结算的经验,提高造价管理水平,避免合同和招标文件中工程量清单不一致的发生,减少工程结算的争议。

Disputes often appear in settlement because the discrepancy of the bills of quantities in the tender document and the con- tract for construction works was often the case in the practice. Some tenderers state that tender documents form a part of the contract, and that even the tender documents shall be priority to the bid documents for the purpose of mutually explanatory of one another. In other words, tenderer has accepted the bid documents which are submitted by the bidder, and the settlement of completion must be in accordance with the tender documents. Tender documents shall not constitute a part of contract whether in general conditions of Development and Reform Commission, of Ministry of Housing and Urban-Rural Development, or of FIDIC. The foregoing way is con- trary to the recognized good practice. The employer requires the contract shall be carried out by the contractor in a proper workman- like and careful manner in accordance with recognized good practice. The contractor may require the employer that the settlement of completion is conduct in accordance with the contract and good practice. It is not acceptable that the settlement of completion shall be conducted in rude and unreasonable. The paper discusses the nature of the bills of quantities in the contract and the cause of the discrepancy of the bills of quantities in the tender document and in the contract, the settlement in such event. The paper also lists the two typical examples which are encountered in practice. It is hoped the more similar paper shall be published because the contract is complex. These will enrich experience in the contract management and settlement of completion, and promote the level of cost man- agement, and prevents against the discrepancy the bills of quantities in contract and tender documents, and minimize disputes in set- tlement of completion.