工程主辦機關處理遲延求償爭議對策最佳化之研究

Abstract

大型公共工程屬對於自然與政經環境變化高度敏感的高風險工作，辦理工期展延乃屬尋常，但往往因而面臨承包商對於工期展延衍生之額外管理成本提出高額求償，造成主辦機關於計畫期程與預算掌控上極大困擾，甚至須面對上級、審計甚至檢調機關質疑時，亦難以具系統性及理論基礎的完整邏輯應對或說明。 國際通說上對於工期展延衍生管理成本之遲延風險與責任歸屬存有歧異，實務上國內承包商較偏好以生態觀點與衡平原則為建議或判斷之調解與仲裁等行政救濟，甚至為不肖廠商視為利基；而工程主辦機關則較偏好審理與判決強調私法自治、契約自由與證據法則之司法救濟，乃致於隨相關求償爭議案件與補償金額日增，而企圖以更多契約免責條款來反制；但採購法納入「強制仲裁」條款後，機關不得拒絕仲裁，即使撤仲並提付法院，通常法院亦僅就程序審理而非實體；故此一策略未能實際解決問題。 不可抗力等非可歸責於雙方之遲延損失常為求償爭議之焦點，機關欲藉由契約預先轉嫁是類風險，而廠商則以救濟手段規避風險或追求利潤，故以經濟學角度合理分配風險較符實際；法經濟學風險分配哲學在理論上可提供策略方向；將該遲延之經濟風險，於契約明訂補償標準由處於風險中性的業主來承擔，雙方均蒙其利；但該類風險並非承包商完全無法預見且仍負有風險防免義務，且實務上工地管理不善往往才是遲延主因，業主完全承擔經濟後果亦非合理，且無助於提升承包商風險防免能力，因此本研究乃針對公平合理之補償機制進行探討，俾利解決爭端。 本研究首先就相關文獻探討是類爭議之內涵與特性，並就國際工程於風險分配理論與實務上之案例進行分析研討，以尋求效益最大化之補償原則；其次依據工程遲延與索賠之基本原理，從計劃網圖時程規範角度衡酌合理補償範圍，另參酌國內外現行補償標準與實務上之經驗，研提具體之處理方案；最後以實際案例驗證其效果與可行性。 依據研究結果，依該建議方案補償額度經試算並與其他補償標準比較後，驗證為適中且具說服力與可行性，故此一系統化之契約條款及公務行政模式，應可供公共工程主辦機關做為處理遲延求償爭議對策最佳化之參考。

For a public construction project of huge scale—which is highly sensitive to natural, political, and social environments—it is common that entitlement to an extension of time be taken .However, this often leads to harsh and complicated consequences. First and foremost, the contractor would ask for an extra amount of management cost for prolongation, which is fairly high. The extra expenses will pose a great challenge to the administrations (official owners) in schedule planning and the management of budget. Finally and most importantly, would then face the questioning or impeachment of higher authorities; it will be much a harsh task for the official owner to reply with a theoretically systematic and logical explanation. International consensus diverges on the issue of allocation of risks due to prolongation. Practically, domestic contractors prefer arbitration in terms of an ecological view and principle of balance; this may be considered by some of contractors as niche, however, with an illegal attempt to gain profit. In light of a public construction administration, jurisdiction is preferable, stressing on the rule of evidence .As the number of claims and the amount of compensation increase each year, official owners seek to invoke more exclusion clauses to counteract. But after including “Compelling Arbitration Clause” in Government Procurement Act ,in 2007, official owners are not allowed to refuse arbitration .And on the other hand ,the court will only focus on the arbitration procedure, not its substance. This issue, therefore, has not yet been settled as the official owners intend to. Most common disputes involving delay in schedule appearing in situation where neither party member could be imputed the cause. Official owners seek to transfer those risks by means of contract clauses; whereas contractors attempt to evade risk or to run after margin via accommodation or arbitration. Thus, adopting an economy approach to risk would be reasonable and practical. The theory of risk allocation in law economy provides theoretical guiding principles in this matter; taking by risk-neutral officer owners in term of clear compensation clause could lead to a win-win situation. But taking all consequences of neither-responsible delay by owner would turn out unfair. Firstly, and the contractor is aware of that, the contractor has a general duty to mitigate the effect on its works of risk events. In addition, mostly, ill-management is usually the main cause of delay. It’s unreasonable that owner would take all financial consequences of delay, also is not helpful to promote the ability of contractor on mitigation of delay and lose. This research will allocate the characters of construction delay claim cases at first. This essay seeks to find out a feasible and equitable compensation mechanism of solution. Firstly, related literature is presented to study common characteristics and intension of issue of this kind. Case studies of international construction standard contracts and their risk allocation in theory and practice will also be discussed to come up with principles of compensation with maximum public benefit. Next base on the core principals relating to delay and compensation, in terms of schedule planning and control of “Program Evaluation and Review Technique” to take account of reasonable compensation range and, in addition, by incorporating existing practice and international compensation formulas, and practical experience, to render a specific formula. Finally, show an actual case to test and verify its outcome and feasibility. By working out the amount of compensation according to the findings, and comparing it with other formulas, this research will prove its modesty, persuasiveness, and feasibility. Thus, this systematic contract terms and mode of compensation should serve as a source of consultation for public construction administrations in dealing with delay-related construction disputes and the optimization management concerning that issue.