KONTRAK KONSTRUKSI DAN ALTERNATIF PENYELESAIAN

Transcription

KONTRAK KONSTRUKSI DAN
ALTERNATIF PENYELESAIAN SENGKETA KONSTRUKSI
Kementerian Pekerjaan Umum dan Perumahan Rakyat
Direktorat Jenderal Bina Konstruksi
7 Oktober 2015
Dispute Resolution Board Foundation
Federation Internationale des Ingenieurs-Conseils (FIDIC)
Indonesian Centre for Arbitration and Alternative Dispute Resolution
for Construction (BADAPSKI)
Sarwono Hardjomuljadi,
Dr, Ir, MSC (Civ), MSBA (Bus), MH (Law), MDBF (ADR), ACIArb (Arb), ACPE.
[email protected]; www.sarwonohm.com
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1
2
3
CONSTRUCTION
CONTRACT
CONSTRUCTION
CLAIM
CONSTRUCTION
DISPUTE
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………………we must also remember in those days it was common place to have employers
squeezing main contractors, main contractors squeezing subcontractors and suppliers and so on
down the line.
Justice of Supreme Court, Quentin Loh (2014), Singapore
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1
CONSTRUCTION
CONTRACT
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CONSTRUCTION CONTRACT
An agreement between two
or more parties creating
obligations that are
enforceable or otherwise
recogniseble at law. (Brian
Garner et al: Black’s Law
Dictionary).
CONTRACT
Contract is a legally binding
agreement. Agreement arises
as a result of offer and
acceptance, but a number of
other requirements must be
satisfied for an agreement to
be legally binding. (Martin and
Law (2006): Oxford
Dictionary of Law)
Contract is a legally binding
agreement formed when one
party accepts an offer made
by another and which fulfills
the conditions. (Chow, Kok
Fong (2006): Construction
Contract Dictionary)
A variety of factors makes a
construction contract different from
most other types of contracts. These
include the length of the project, its
complexity, its size and the fact that
the price agreed and the amount of
work done may change as it proceeds
(John Adriaanse (2010):
Construction Contract Law)
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www.themegallery.com
Burgerliches Gesetzbuch (German Civil Code-BGB) dan
juga Verdingungsordung fur Bauleistungen
(Construction Contract Procedurses-VOB) , Kontrak
konstruksi merupakan suatu kontrak yang khusus yang
dikenal sebagai “Werkvertrag” . Perbedaan Werkvertrag
dengan kontrak yang lain adalah karena kontrak bukan
merupakan perjanjian sederhana yang merupakan
pertukaran antara barang dan uang, tetapi pihak
penyedia jasa harus memberikan layanan jasa berupa
“membuat sesuatu” sesuai dengan yang diperjanjikan
dengan kinerja yang akan dinilai sukses atau tidaknya
berdasarkan kriteria yang telah disepakati kedua belah
pihak sebelumnya. dan pihak pengguna jasa memberi
imbalan pembayaran untuk itu.
(Wolfgang Rosener, Gerhard Dorner (2005): An
Analysis of International Construction Contracts,.
CONTRACT
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FIDIC Conditions of Contract
for Construction
for Plant and Design Build
for EPC/Turnkey Projects
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Sub-Clause 14.1 The Contract Price
(a) the Contract Price shall be agreed or determined under Sub-Clause 12.3 [Evaluation] and
be subject to adjustment in accordance with the Contract.
(Conditions of Contract for Construction-1999 and MDB Harmonised Edition-2006)
(a) the Contract Price shall be the lump sum Accepted Contract Amount and be subject to
adjustments in accordance with the Contract
(Conditions of Contract for Plant Design Build 1999)
Unless otherwise stated in the Particular Conditions:
(a) payment of the Works shall be made on the basis of the lump sum Contract Price, subject to
adjustments in accordance with the Contract;
(Conditions of Contract for EPC/Turnkey Projects -1999)
The above sub-clause shows that the Contract Price in EPC Contract is “fixed contract price”, means that in
case there are some works necessary to be done on completing the Work (Constructive Change Order), such
cost “shall be added to the contract price” and not “shall be included in the Contract Price” as for the cost of
additional work in the Construction Contract.
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Sub-Clause 14.1
The Contract Price
Unless otherwise stated in the Particular
Conditions: Sub-Clause 14.1
(a) the Contract Price shall be agreed or
The Contract Price
determined under Sub-Clause 12.3 [Evaluation]
Unless otherwise stated in the Particular Conditions:
and be subject to adjustments in accordance
(a) the Contract Price shall be the lump sum Accepted
with the Contract;
Contract Amount and be subject to adjustments in
(b) the Contractor shall pay all taxes, duties and
accordance with the Contract;
fees required to be paid by him under the
(b) the Contractor shall pay all taxes, duties and fees
Contract, and the Contract Price shall not be
required to be paid by him under the Contract, and the
adjusted for any of these costs except as stated
Contract Price shall not be adjusted for any of these
in Sub-Clause 13.7 [Adjustments for Changes in
costs, except as stated in Sub-Clause 13.7
Legislation];
[Adjustments for Changes in Legislation];
(c) any quantities which may be set out in the Bill
(c) any quantities which may be set out in a Schedule
of Quantities or other Schedule are estimated
are estimated quantities and are not to be taken as the
quantities and are not to be taken as the actual
actual and correct quantities of the Works which the
and correct quantities:
Contractor is required to execute; and
(i) of the Works which the Contractor is
(d) any quantities or price data which may be set out in
required to execute, or
a Schedule shall be used for the purposes stated in the
(ii) for the purposes of Clause 12
Schedule and may be inapplicable for other purposes.
[Measurement and Evaluation]; and ………….
However, if any part of the Works is to be paid
according to quantity supplied or work done, the
provisions for measurement and evaluation shall be as
stated in the Particular Conditions. The Contract Price
shall be determined accordingly, subject to
adjustments in accordance with the Contract.
Sub-Clause 14.1
The Contract Price
Unless otherwise stated in the Particular
Conditions:
(a) payment for the Works shall be made on
the basis of the lump sum Contract Price,
subject to adjustments in accordance with the
Contract; and
(b) the Contractor shall pay all taxes, duties
and fees required to be paid by him under
the Contract, and the Contract Price shall not
be adjusted for any of these costs, except as
stated in Sub-Clause 13.7 [Adjustments for
Changes in Legislation].
Sub-Clause5.3
Contractor’s Undertaking
The Contractor undertakes that the design, the
Contractor's Documents, the execution and
the completed Works will be in accordance
with:
(a) the Laws in the Country, and
(b) the documents forming the Contract, as
altered or modified by Variations.
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Sub-Clause 2.1
Right of Access to the Site
Sub-Clause 16.1
CONSTRUCTION
CONTRACT
CONTRACTOR
Contractor‟s
Entitlement
to
If the Contractor suffers delay and/or incurs
Cost as a result of a failure by the Employer
Sub-Clause 4.24
to give any such right or possession within
suchFossils
time, the Contractor shall give notice
If theEmployer
Contractorand
shall,
uponbediscovery
to the
shall
entitled of any
such
finding,
promptly
give
notice to the
subjectSub-Clause
to Sub-Clause
[Contractor's
7.420.1issue
Employer,
who
shall
instructions
for
Claims] to:
Testing
dealing
with of
it. time
If theforContractor
suffers delay
(a) an
extension
any such delay,
If theincurs
Contractor
delay under
and/or
and/or
from
complying
withincurs
the Cost
if completion
is orCost
will suffers
be
delayed,
from
complying
with
these
instructions
or as a
instructions,
the
Contractor
shall
give
a
further
Sub-Clause
[Extension
Time for
Sub8.4
Clause
8.9forofwhich
result
of
a
delay
the
Employer
is
notice toand
the Employer and shall be entitled
Completion],
Consequences
of
Suspension
responsible,
the
Contractor
shall
give
notice
to
the
(b) subject
payment toof Sub-Clause
any such 20.1
Cost [Contractor's
plus
If
the
Contractor
suffers
delay
and/or
incurs
Cost
Employer
and
shall
be
entitled
to SubClaims]
to:
reasonable profit, which shall be added subject
to
complying
thesuch
Employer„s
20.1
[Contractor's
Claims]
to:
(a)Clause
anfrom
extension
of timewith
for any
delay, if instructions
the Contract
Price.
Sub-Clause
10.3
under
Sub-Clause
8.8
[Suspension
of Work]
(a)
an
extension
of
time
for
any
such
delay,and/or
if
completion is or will be delayed, under SubInterference
with
Tests
on
Completion
from
resuming
the
work,
the
Contractor
shall
give
completion
is or willofbeTime
delayed,
Clause
8.4 [Extension
for Completion],
If the
suffers
and/or
incurs
notice
toContractor
the Employer
and delay
shall be
entitled
subject
Sub-Clause
8.4
[Extension
of
Time
forCost as
andunder
a
result
of
this
delay
in
carrying
out
the
to Sub-Clause
20.1 [Contractor's
Claims]
andsuch
(b)Completion],
payment
of Sub-Clause
any
Cost,13.7
which shall
be to: Tests on
Completion,
the
give
notice
an
extension
ofContractor
timeCost
for shall
any
delay, toif the
(b)(a)to
payment
of any
such
plus such
reasonable
added
the Contract
Price.
Adjustments
for
Changes
in
Legislation
Employer
and
shall
be
entitled
subject
to
Sub-Clause
completion
is
or
will
be
delayed,
under
Sub-Clause
profit, which shall be added to the Contract Price.
If theofContractor
suffers
(orand
will suffer) delay
[Contractor's
Claims]
to:
8.420.1
[Extension
Time
for Completion],
and/or
incurs
(or
will
incur)
additional
Cost ifas a
an extension
of Cost,
time which
for any
such
delay,
(b)(a)
payment
of any such
shall
be added
result
of
these
changes
in
the
Laws
or
in such
completion
or will be delayed, under Sub-Clause
to the
ContractisPrice.
interpretations,
made
after theand
Base Date, the
8.4 [Extension
of Time for
Completion],
Contractor
to the Employer
(b) payment
of anyshall
suchgive
Costnotice
plus reasonable
profit, and
shall
be
entitled
subject
to
Sub-Clause
20.1
which
be added to the Contract Price.
[Contractor's Claims] to:
(a) an extension of time for any such delay, if
completion is or will be delayed, under Sub-Clause
8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be
added to the Contract Price.
Suspend Work
If the Contractor suffers delay and/or incurs
Cost as a result of suspending work (or
Sub-Clause 17.4
reducing the rate of work) in accordance with
Employer‟s
thisConsequences
Sub-Clause, the of
Contractor
shall Risks
give
If thetoContractor
delay be
and/or
incurs
notice
the ployersuffers
and shall
entitled
Cost
from
rectifying
this
loss
or
damage,
subject to Sub-Clause 20.1 [Contractor'sthe
Sub-Clause
19.4a further notice to the
Contractor
Claims]
to: shall give
andofshall
be
entitled
subject
(a)Employer
anConsequences
extension
time for
suchMajeure
delay, if to
of any
Force
Sub-Clause
20.1
[Contractor's
Claims]
to:performing
completion
or will be delayed,
If the is
Contractor
is prevented from
(a)
an
extension
of
time
for
any
such
delay,
underany
Sub-Clause
8.4 [Extension
of Time
for if
of his obligations
under
the Contract
by
completion
is
or
will
be
delayed,
Completion],
and
Force Majeure of which notice has been given
Sub-Clause
8.419.2
[Extension
of Force
Time
(b)under
payment
of any
such
Cost
plusfor
under
Sub-Clause
[Notice
of
Majeure],
Completion],
and
reasonable
profit,delay
which
shallincurs
be added
and suffers
and/or
Cost bytoreason of
payment
of any
such Cost,
shall be
the(b)
Contract
Price.
such
Force
Majeure,
the which
Contractor
shall be
added
to
the
Contract
Price.
entitled subject to Sub-Clause 20.1 [Contractor's
Claims] to:
(a) an extension of time for any such delay, if
completion is or will be delayed, under SubClause 8.4 [Extension of Time for Completion],
and
(b) if the event or circumstance is of the kind
described in sub paragraphs (i) to (iv) of SubClause 19.1 [Definition of Force Majeure] and, in
the case of subparagraphs (ii) to (iv), occurs in
the Country, payment of any such Cost.
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CONSTRUCTION CLAIM
2
CONSTRUCTION
CLAIM
2
2
CONSTRUCTION
CLAIM
CONSTRUCTION
CLAIM
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[1]
Martin, Elizabeth A and Law, Jonathan (2006): “Oxford Dictionary of Law”, Oxford University Press, New York
CONSTRUCTION CLAIM
Garner “A demand for
money, property, or a
legal remedy to which
one asserts a right”.
Garner, Bryan A (2004):
“Black’s Law Dictionary”
CLAIM
Martin and Law (2006)
“Claim is a demand for a
remedy or ascertain of a
right, especially the right
to take a particular case
to court”.
Hardjomuljadi et al (2006)
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[1]
CONSTRUCTION CLAIM
Faktor 1.1 Constructive
Change Order
Faktor 2.1 Oral Change Order
by Employer
Faktor 1.2 Variation Order
Faktor 2. 2 Possession of Site
and Availability
Faktor 1.3 : Inadequate site
investigation
KLAIM
Faktor 3.1 Changes in
Design
Faktor 3.2 Subsurface conditions of
geology
Hasil survey 2009
Faktor 3.3 Other Contractors
Interference and Delay
Faktor 3.4 Inefficiency and
Disruption
Sarwono
Hardjomuljadi,
Dr, Ir, MSC (Civ), MSBA (Bus),
MH (Law),
MDBF (ADR), ACIArb (Arb), ACPE.
Dr, Ir, MSC [email protected];
(Civ), MSBA (Bus), MH (Law),
MDBF
(ADR), ACIArb
(Arb), ACPE.
www.sarwonohm.com
COMPANY
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[1]
CONSTRUCTION CLAIM
Figure 02: Causal Factors of Claims and Disputes in HEPP (2014)
The Latest Development in Civil Engineering (LDCE):
a book is to honor the 80th Birthday of Professor Wiratman Wangsadinata
Jakarta, February 25, 2015.
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[1]
CONSTRUCTION CLAIM
Figure 03: Causal Factors of Claims and Disputes in Road Projects (2014)
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[1]
CONSTRUCTION CLAIM
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CONSTRUCTION DISPUTES
Chow, Kok Fong (2006):
“Construction Contracts
Dictionary”.
”……….. difference in position over a
matter which is submitted for
determination by a tribunal. A dispute
does crystallise where a party merely
requests another party for more
information to explain the items
featured in a matter or to allow more
time for a more careful consideration
of the matter”.
DISPUTE
Black’s Law Dictionary (2004):
a conflict or controversy,
Lord Denning MR (1965) “......... a
dispute or difference to arise under
a construction contract, there must
be in the first place be a claim by
the contractor. Until that claim is
rejected, you cannot say that there
is a dispute or difference”
Ahmad Ali, Kamus Besar Bahasa
Indonesia,(Jakarta: Balai Pustaka)
Pertentangan atau konflik, konflik berarti
adanya oposisi atau pertentangan antara
orang orang, kelompok-kelompok, atau
organisasi-organisasi terhadap satu obyek
permasalahan”
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CLAIMS
YES
NO
AGREED
DISPUTES
ADR
FINISHED
LITIGATION
by negotiation
by cosultation
by conciliation
by mediation
by arbitration
by expert assesment
INDONESIAN LAW No 30/ 1999
by mediation
by conciliation
assisted
by expert assesor
by arbitration
INDONESIAN LAW No 18/ 1999
Act No 29 Year 2000
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CASE 1 Silver book,
Contracted USD 10.000 for simple WC type 1 (squatting
closet)
Because of health problem, Employer intend to change the
WC become type 2.
Employer:
Contractor have to follow up the employer’s
request with their own expense, ref Sub Clause
4.12.
Contractor:
Employer have to pay the additional cost
ref 1Sub Clause 13.1; 13.3
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CASE 2
Construction of jetty based on the design prepared by the contractor with reference to document
submitted by the Employer at tender time.
During construction period the Contractor get additional data on the sea water level, which is 20
meter additional length needed to reach the location with the water depth required to allow ship to
enter.
Employer:
Contractor:
Contractor have to construct the additional length
with their own expense, ref Sub Clause 4.12.
Employer have to pay the additional cost
ref 1Sub Clause 13.1; 13.3
Since agreement can not be reached, the Contractor construct the jetty as what their design with
the understanding the design made based on the information to tenderer prepared by the
Employer,
The Jetty completed but not in function
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CASE 3:
Road construction include some bridges
which
have been
designed with the pile foundation. During the
Case
1: Yellow
Book.
construction stage it was found that the length of the pile needed to reach the hard ground is about 25 meter, 10
Additional length
meter longer than the contractor’s design, which was based on the information given by the Employer as
information to tenderer received by the Contractor .
The Contractor is silent and does not submit any claim concerning neither additional length of the piles, nor the
inaccurate investigation result from the Employer.
Finally the Contractor submit progress payment, attached with working drawing signed by the Engineer on behalf
of the Employer .
Employer:
Wrong conduct: Claim on payment rejected
because “design by the contractor and the
contract is lumpsum”. Sub-Clause 4.12
Contractor:
Confident with their claim, with the understanding that the
approval on the working drawings identical with the order or
the approval on design change, so it could be considered as
variation order. Sub-Clause 13.1 and 13.2
Employer:
The correct rejection based on the Yellow Book
should be: “The Contractor was not submit the
notification of claim in due time as stipulated in
the contract “. Clause 20
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Sarwono Hardjomuljadi
Dr, Ir, MSc (Civ), MSBA (Bus), MH (Law), MDBF (ADR), ACIArb (Arb), ACPE (Eng)
FIDIC Affiliate Member
FIDIC Adjudicator
FIDIC International Accredited Trainer
Federation Internationale des Ingenieurs-Conseils
FIDIC - Box 311 - CH-1215 Geneva 15 - Switzerland
SKYPE fidic.secretariat - Tl +41-22-799 49 00 - Fx +41-22-799 49 01 – w
ww.FIDIC.org
Country Representative for Indonesia (MDRBF)
The Dispute Resolution Board Foundation
19550 International Blvd. So Suite 314
Seattle, Washington 98188, USA
Tel.(206) 878-3336, Fax (206) 878-3338
www.drb.org
Corporate Panel Member (MDBF)
The Dispute Board Federation
14, rue du Rhone
1204 Geneva, Switzerland
Tel: +41 22 819 19 68, Fax: +41 44 732 69 95
www.dbfederation.org
Associate Member (ACIArb)
Chartered Institute of Arbitrators
12 Bloomsbury Square
London, WC1A 2LP, UK
Tel: +44 (0)20 7421 7444; Fax: +44 (0)20 7404 4023
www.ciarb.org
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KONTRAK KONSTRUKSI DAN ALTERNATIF PENYELESAIAN

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