When concluding construction contracts, technical and budget documentation is formed. Work must be carried out strictly in accordance with them. The corresponding duty of the contractor is established in the current version of Art. 743 of the Civil Code of the Russian Federation. The same norm refers to the content of documentation, the responsibility of the contractor for violations of its provisions. Consider Art. 743 of the Civil Code of the Russian Federation with comments.
General information
In h. 1 Article. 743 of the Civil Code of the Russian Federation stipulated that the technical documentation should establish the scope, content of the planned work and the requirements for them. The second obligatory document, which should guide the contractor, is the estimate. According to paragraph 1 of Art. 743 of the Civil Code of the Russian Federation, it determines the cost of work.
In the absence of other instructions in the contract, by default it is assumed that the contractor is to perform all the work specified in the estimate and technical documentation.
The composition and content of securities must be specified in the agreement. This is stated in paragraph 2 of Art. 743 of the Civil Code of the Russian Federation. in addition, in the contract, the parties to the transaction establish which of them and in what time frame is required to provide documentation.
Additional work
In practice, it often happens that the contractor identifies the need to carry out additional activities that increase the estimate. He must immediately inform the customer of all such cases. If the answer is not received within 10 days, the contractor, in accordance with paragraph 3 of Art. 743 of the Civil Code of the Russian Federation, the right to suspend the execution of work. At the same time, he may submit a claim to the customer for compensation for losses incurred in connection with downtime. If the customer can prove that there was no need for additional activities, then the burden of responsibility for downtime is removed from him.
If the contractor has not fulfilled the obligation established by paragraph 3 of Art. 743 of the Civil Code of the Russian Federation, he loses the right to demand from the customer to pay for additional work performed, as well as to compensate for losses caused by this. This rule does not apply if the contractor can prove the need for immediate action solely in the interests of the customer, for example, due to the fact that the delay or suspension of activities could cause damage or death to the construction site.
If the customer has agreed to carry out additional work and, therefore, to pay for it, the contractor may refuse to perform them only if they are not within his competence or cannot be performed for reasons beyond his control. This is stated in paragraph 5 of Art. 743 of the Civil Code of the Russian Federation.
Important point
When concluding the contract, the contractor receives a clear technical task and papers in which the key parameters of the proposed work are set. The contractor must perform the work in strict accordance with the technical documentation. The implementation of additional measures and, accordingly, the introduction of amendments to the paper is possible only in the manner and under the conditions provided for by the Civil Code and other industry regulations.
The composition of the information TD
Technical documentation, according to Art. 743 of the Civil Code of the Russian Federation, contains data on the volume of work (in tons, cubic meters, running meters, etc.), their contents (installation, general construction, commissioning, special construction, etc.), other requirements for them. For example, we can talk about the requirements for preparatory work. In the course of them, a list of measures is being developed for preparing the construction site and the territory adjacent to it for further actions: building access roads, clearing the territory, building a power line, demolishing buildings, etc.
Estimate
The subject, performing work in accordance with the requirements of technical documentation, is obliged to adhere to the estimate at the same time. Excess costs compared with those specified in it are reimbursed by the contractor from their own funds.
In the construction contract (as, in fact, in the usual), the estimate can be approximate. This means that the parties can clarify it in the course of the work. Estimated cost can be fixed (final). According to general rules, it is recognized as solid (fixed), unless the agreement contains other instructions. In addition, it is assumed that the parties took into account all the costs of the necessary work.
Unforeseen factors
In order to prevent or minimize adverse consequences in the event of an increase in the cost of work, a reserve should be provided in the estimate. It will be used to cover additional and unforeseen events. Typically, the amount of the reserve is not more than 10% of the total construction cost.
In the approximate estimate, only the estimated price of the object is planned. If during the course of the work it turns out that the cost was higher than expected, the contractor may demand an increase in payment. Such an estimate is advisable if, at the conclusion of the contract, the parties are not able to assume more or less accurate amounts of all the work or costs necessary for their implementation and, accordingly, cannot take them into account in the contract.
The impossibility of foresight is determined by different circumstances: the term of the agreement, the nature of the work (ground, underground, deep, etc.), complexity, novelty, natural and climatic features of the area, etc.
Nuance
Deviation from the approximate cost in the direction of reduction due to justified savings will not give the customer the right to reduce payment. The fact is that in Art. 710 of the Civil Code stipulates that the contractor is entitled to keep the savings received during the performance of contractual obligations. The exception is when the parties to the transaction take another decision on the distribution of the saved resources or they are the result of a decrease in the quality of construction work.
Revision of the firm estimate
Compensation for excess of the fixed cost is not carried out at the expense of the customer, because it refers to the risk of the contractor. However, from the provisions of paragraph 3 of Art. 743 of the Civil Code of the Russian Federation it follows that a solid estimate at the request of the contractor can still be reviewed in two cases:
- When identifying during construction works that are not considered in technical documents.
- If the construction costs become more expensive due to reasons beyond the control of the contractor and, accordingly, the estimated cost exceeds not less than 10%.
It must be emphasized that in the Civil Code the consequences of the onset of these circumstances are not dependent on which estimate is considered final or approximate.
Partial execution of work
Based on the provisions of paragraph 3 of Art. 743 of the Civil Code, it is assumed by default that the contractor will perform all the work established by the estimate and technical documentation. This provision, however, can be refuted by the contractor if he can prove that the terms of the contract result in the fact that he performed only part of the work at the construction site, and the rest is carried out by them jointly or only by the customer.
This rule will also apply when an entity enters into several contracts with different performers for the production of individual works. In each of these cases, the customer is obliged to transfer to the contractors the estimate and technical documentation only for the relevant part of the work, indicating their shares in the contract price.
Coordination Features
In h. 2 Article 743 of the Civil Code of the Russian Federation stipulated that the parties to the agreement should determine the content and composition of technical documentation. At the same time, a number of nuances must be taken into account.
The content and composition of technical documentation is determined by the type of facility, the climatic conditions of construction, the nature, scope of work, materials to be used, etc. Accordingly, in each contract, questions about the composition and content of papers are decided strictly individually, with respect to a specific construction object.
The agreement should also include an indication of the distribution of responsibilities between participants in the provision of relevant documents: project, working drawings, tables, calculations, clarifications, etc. The participants in the transaction must also agree on the timing of the provision of securities. In any case, the estimate and technical documentation must be drawn up before the start of work. For the development of securities, the contractor or customer may engage third-party companies. As practice shows, in the construction of non-industrial structures, hotels, residential buildings, the contractor is involved in the development of design and technical documentation and budgeting.
It is worth saying that regardless of who prepares the papers, they must be agreed with the other side.
A few words about additional work
In paragraph 3 of Article 743 of the Civil Code, the obligations and rights of the contractor are fixed in case of identification of works not reflected in the technical documentation. based on the provisions of paragraph 1 of the same norm, the contractor is not entitled to deviate from the requirements specified in the papers, since it is assumed that they provide for the whole range of necessary construction work.
At the same time, situations are not excluded when the contractor, in the course of the assignment, identifies unaccounted work and considers it necessary to carry out it and, accordingly, increase the estimated cost.
In such cases, in accordance with paragraph 3,743 of the Civil Code article, the contractor has some responsibilities related to customer behavior. So, first of all, the contractor is required to notify the customer and wait for a response from him at least 10 days (in the contract, however, a different period can be set).
The customer is obliged to take measures to resolve the situation during this period and inform the contractor of the decision he has made. He must either agree to additional work, or not. In the first case, the consequences stipulated by paragraph 5 of Art. 743. If the customer does not respond to the contractor, the latter may suspend work. In this case, the first gets the right to prove that additional work was not needed.