工程契約分段進度及逾期違約金

Construction Contract Stages of Progress and Liquidated Damages for Delay

工程契約尤其是公共工程契約，工程準時完工提供公共使用，涉及重要的公共利益，為達此一目的，工程契約通常會約定履約期限，甚至在履約期限中另行約定分段進度，並約定倘若逾期時，廠商需負逾期違約金的責任。當然，此一作法能確保廠商如期履約，亦能於廠商逾期時，讓機關無須另訴請求損害賠償及減輕機關的舉證責任，也可以減少回復損害的不確定性，但也不是全然沒缺點，譬如未必能促使廠商準時完工，可能影響廠商競爭及提高廠商投標報價，以及增加契約管理的負擔等。在約定分段進度的逾期違約金時，也應考慮這些利弊因素，尤其若約定全部完工後使用或移交之分段進度及逾期違約金，由於其目的性較為薄弱，考量是否規定時更應慎重，宜結合機關的合理、正當需求，不應過於樂觀。
分段進度及逾期違約金爭議類型，經分析經常發生的類型主要為「未明確約定分段進度及分段進度工作內容」等五類，而爭議發生的原因主要還是在於契約未明確約定或工程人員觀念不清，為避免類似爭議重演，契約應明確約定分段進度的工期、分段進度的工作內容、分段進度的逾期違約金計算方式及標準，以及明確約定分段進度的類型。此外，契約條文分段進度及逾期違約金約定不明確時的解釋原則應以廠商可得理解的契約意義作為解釋意思表示的依據，亦即應側重於契約外觀上所顯示之客觀意義進行契約解釋。
工程採購契約範本的效力並非僅供參考，實具有一定強度的拘束力，而可作為工程契約解釋、履約的法源。為徹底解決分段進度及逾期違約金的爭議，行政院公共工程委員會或可修正「採購契約要項」及「工程採購契約範本」有關分段進度及逾期違約金的規定，納入分段進度的約定等相關規定供機關勾選及填寫。另外就採購的內部控制規定，提醒機關檢核相關分段進度及其逾期違約金約定有無疏漏，以更積極的行政指導作為協助機關妥適、明確訂定契約條文。

As it comes to any contract of constructions, especially public constructions in particular, the work to be completed by the scheduled timeline associates with significant public interests. Accordingly, a specifically given time limit of contract performance of such construction contract will be mutually agreed to attain such goal. Occasionally, completion by stages of progress will be clearly provided in a public construction contact in association with the specifically given time limit of contract performance to be mutually agreed. In some cases, it is also mutually agreed that the contractor need be fully liable for the amount of liquidated damages for delay related to such work. It goes without saying that such means is advantageous since it will not only ensure the work to be completed without delay but also exempt the public sector from being liable for claims of indemnification and from the burden of proof in the event of the work possibly to be completed with delay, which mitigates uncertainties of restitution as well. Notwithstanding, such means is not flawless. For example, such means cannot force the contractor to complete the work without delay; such means may deflate the contractors’keen intent to join the bidding and inflate their tendering price unavoidably owing to the legal risk arising from obliged fulfillment of stages of progress and the amount of liquidated damages for delay related thereto in a public construction contract; and such means will definitely contribute to the high contract management workload. As it comes to the amount of liquidated damages for delay to be mutually agreed in a contract, pros and cons must be taken into consideration. If a public construction contract has prescribed stages of progress and the amount of liquidated damages for delay related thereto by full completion for use or transfer to the public sector, it requires considerable deliberation to adopt such means in the event of thin purposefulness; therefore, the author finds it necessary to rate the appropriateness of the fair and just need of the public sector without high hope when adopting such means in a public construction contract.
Concerning the types of the disputes arising from stages of progress and the amount of liquidated damages for delay in a contract, the analytics shows that the most frequently seen types go to 5 types including“stages of progress and their job specifics not clearly provided in a contract”; that is, the disputes result from mostly the unclear provisions in a contract or the unclear concept of the worker on the site. To avoid recurrence of such dispute, the provisions in a contract shall prescribe clearly the scheduled timeline of stages of progress, the job specifics of stages of progress, the calculation manner and standard of the amount of liquidated damages for delay, and the type of stages of progress clearly provided in a contract. Besides, regarding the interpretation principles governing and applicable to the unclear provisions in a contract associated with stages of progress and the amount of liquidated damages for delay in a contract, it is necessary to apply the contract significance comprehensible for the contractor as the ground to interpreting the provisions in that contract; that is, it is necessary to interpret the contract by focusing on the impersonal significance outwardly indicated by the contract.
The construction procurement contract template issued publicly functions more than just a standard form for reference only but is authentically legally binding with some jurisprudential robustness that can serve as the legal ground of the construction contract in terms of the associated interpretations and contract performance. Relating to provision of overall solutions to the disputes arising from stages of progress and the amount of liquidated damages for delay in a public construction contract, it is doable for the Public Construction Commission, Executive Yuan engages in amending the provisions governing stages of progress and the amount of liquidated damages for delay in a public construction contract in the Essential Requirements of Procurement Contracts and the Construction Procurement Contract Template by covering the regulations associated with stages of progress therein so that the public sector in need of signing a public construction contract with a contractor has the options to be boxed and entered. As it comes to the procurement-associated internal control rules, it is suggested that the public sector reviews the provisions in a public construction contract that has prescribed stages of progress and the amount of liquidated damages for delay related thereto in order to audit negligence and incompliance and further offers the more positive administrative guideline to the public sector to make the provisions in the public construction contract with the contractor in a duly and clear manner.