合同管理方面的英文文獻(xiàn)2

1、International Journal of Project ManagementVolume 26, Issue 2 , February 2008, Pages 174-184doi:10.1016/j.ijproman.2007.05.002| How to Cite or Link Using DOICopyright ? 2007 Elsevier Ltd and IPMA All rights reserved.。Permissions & ReprintsUnderstanding time delay disputes in constructioncontractsK.C

2、. Iyer a, , N.B. Chaphalkar b, * and G.A. Joshi c, aDepartment of kManagement I Studies, Indian Institute of Technology Delhi, New Delhi 110 016, India bDepartment of Civil rEngineering, Indian Institute of Technology Delhi, New Delhi 110 016, India cPunj Lloyd Limited, Punj Lloyd House, 17-18 Nehru

3、 Place, New Delhi 110 019, IndiaReceived 6 September 2006;revised 18 February 2007;accepted 1 May 2007.Available online 27 July 2007.AbstractMost of the -construction projects are executed through -contracts- which are generally not easy to comprehend even by professionals. With advancement in techn

4、ology and mammoth requirement of infrastructure in developing countries like India, there has been increase in size and complexities in the nature of projects. This gives rise to further ambiguities in the prevailing contract 1 forms eventually making ,contract forms more complex and difficult and c

5、ausing adversarial impacts such as increase in number and frequency of claims and disputes besides time and cost overruns. To overcome the worsening scenario, it is essential to develop a system that can assist thecontractadministrators tounderstand and evaluate worth of their claims prior to taking

6、 it to litigation. An attempt has been made to devise a rule-based expert system to achieve this objective with a limited scope of disputes arising out of Time Delay and Extension in IndianConstruction Contracts.Keywords:Construction contracts; Constructionclaims; Dispute resolution; Expertsystem; C

7、ontract administrationArticle Outline1. Introduction2.Literature survey3.Expert system4.Expert system for settlement of disputes in indian construction5.Development of rule-based system for time delay and extension clause5.1. Cause and effect relationship of disputes5.1.1. Types of delay5.1.2. Types

8、 of claims due to delay5.2. Formulation of domains for expert system5.3. Development of rule base for delay domains5.3.1. Delay due to Handing over of site 5.3.2. Delay due to Release of mobilisation advance 5.3.3. Delay due to Late receipt/checking of drawings5.3.4. Delaydue to Accidents5.3.5. Dela

9、ydue toTemporarystoppage 5.3.6. Delaydue to Rework5.3.7. Delaydue to Extra work5.4. Software development6.ConclusionsReferences1. IntroductionThe construction industry is the second largest industry in the India, being next to agriculture.As per tenth five year plan of India roughly 44% of the count

10、ry s plan outlay falls within thepurview of ,construction，activity during year 2002-2007.Majority of construction - works are carried out through -contracts. In India the most public projects used to follow the standard -contract? conditions formulated by the two government organisations namely Cent

11、ral Public Works Department (CPWD), andMilitary Engineering Services (MES) till recently. FIDIC conditions were introduced in 1980s for some public works on the insistence of the funding agencies like World Bank and Asian Development Bank as it was felt that the prevailingcontract conditions were no

12、t equitableand the projects were likely to be delayed.As a developing nation, India is also going through a phase of infrastructure expansion due to globalisation. These infrastructures are of different types and magnitude and most of them are multidisciplinary in nature. With the increasing size an

13、d complexity in nature of projects the conditions of the contracts also tend to become more complicated, which in turn add to number of disputes to the already existing ones and further delay the settlement of disputes. The delay in dispute settlement has manifold effects as given below.? It hampers

14、 the project progress if dispute arises during execution stage.? It is detrimental to the relationship between owner and cont ractor.? It contributes to the cost and time overruns.? It sends bad signals to foreign investors thereby slowing down the national progress.It is generally said that the * c

15、ontract * language is considered difficult to comprehend and they are therefore a major source of disputes. With the increase in complexities in the nature of work as stated in the preceding paragraph, the ，contracts，are also likely to be more complex. As such, a recent study indicates that the aver

16、age time taken by the Indian Courts for deciding disputes is normally between 5 and 15 years after it has passed through the arbitration trial.Parties feel frustrated because of the delay in settlement of disputes. This delay contributes to continuous rise in the number of cases pending in various c

17、ourts. It is reported that there are over two million cases pending in 18 High Courts (apex courts of various states of India) alone and more than 200,000 cases are pending in the Supreme Court (apex court of the nation) for admission, interim relief or final hearing 34. With the increasing complexi

18、ty in-.contracts thesituation is expected to further worsen.To change this scenario it is essential to develop a scientific methodology to help judiciary to check the number of disputes. Also such scientific tool should give guidelines to owners and contractors to evaluate the strength of their clai

19、ms before they are pursued. An expert system is considered to be one such tool. In this paper an attempt to develop a rule-based expert system for resolution of disputes has been discussed. However since there are a number of sources for a dispute including dispute-prone -contract ?clauses, the pres

20、ent paper discusses development of rule-based expert system for resolution of disputes arising out of only the time delay and extension clause.2. Literature surveyIn Indian context, Iyer 7 has identified the following critical clauses that lead to disputes in construction contracts through case rese

21、arch study. These clauses, in the decreasing order of their criticality with regard to propensities of disputes, are given below.? Final and binding power? Time, delay and extension? Termination of contractp? Pricing of deviation and extra items by owner representative s? Deviation limit/scope of wo

22、rk? Price escalationThe author observes that the literature and case laws are difficult to reconcile and can easily lead engineers and non-legal professionals to believe that courts are arbitrary and that the outcome of a court cannot be predicted. Incidentally, a similar observation was made by Tho

23、mpson and Portis 30 and Rubin 20 when they discussed - construction f law of United States of America. However, Thomas et al. 28 showed that the consistency of the law could be shown through careful case law research. They also demonstrated consistency of the law in several cases e.g. disputes on no

24、tice requirements 29, disputes on oral change orders 28, disputes on misrepresentations 26, disputes on differing site conditions clause 27, disputes on interpretation of clauses 25, disputes on specifications 22, disputes regarding certifying completion 23 and disputes on enforcement of liquidated

25、damages 24. In each of these studies authors have shown a systematic way of resolving disputes arising out of several reasons stated above besides establishing the consistency in court decisions in the US -construction contracts. I- In India too, a few researchers, through case research studies, hav

26、e developed decision support systems for resolution of disputes arising out ofdecisions under final and binding power vested with some authority Cothteact9 and time delay and extension clause 8.These decision support systems can be further synthesized to form an expert system so that all sources of

27、the given dispute can be analysed simultaneously and appropriate decision can be given.Allwood 1 has mentioned some expert systems developed for Civil Engineering 口 in the following areas.? To diagnose the causes of dampness in buildings.? To select the most suitable paint treatment to protect struc

28、tural steelwork from corrosion.? To select appropriate type of tower crane for use in multi -storey construction.? To offer advice on *construction - planning.? To examine the cross section of a window frame and consider all possible routes by which the water might penetrate the frame.? To check a r

29、oom layout.? To design the layout of temporary facilities on a c construction a site.Mohan 14 has listed 37 expert systems in the field of *iConstruction Management and Engineering I out of which 3 were related to contract management dealing with selection of contract * type and differing site condi

30、tion claims. Kraiem et al. 11 have developed an artificial intelligent system called DISCON, which is designed to give legal advice to design and construction engineers as well as contractors and owners concerning Different Site Conditions claims. DEViCE (Dynamic Expert system for Valuing Variations

31、 inCivil -Engineering) was developed by Sutrisna 21. This system deals with quotations related to excavation. Cheung et al. 6 have developed a fuzzy , Construction Dispute Evaluation (CDE) model based on the knowledge extracted from practitioners in Hong Kong. They suggest dispute control mechanism

32、through four stages: dispute identification, dispute analysis, dispute evaluation & dispute control.A number of expert systems have also been developed in various fields by researchers form India, but no expert system is reported in the area of .construction disputes. Thus as a modest beginning an e

33、xpert system is developed for resolution of disputes arising out of one of most dispute- prone clauses, the time delay and extension clause.3. Expert systemRecent developments in computer technology, especially in the field of Artificial Intelligence, make it possible to simulate human-like reasonin

34、g in computer systems. Such systems are popularly known as Expert Systems.The expert system comprises of knowledge base, inference engine, working memory, user interface, explanation facility and a knowledge acquisition facility.The heart of the expert system is the knowledge base where domain speci

35、fic knowledge acquired from the expert is stored. The user of the expert system interacts with it through the user interface and the expert s knowledge is collected and compiled through knowledge acquisition facility. The knowledge acquired from the expert is stored in the knowledge base using vario

36、us formal knowledge representation techniques. The hypotheses and facts are generated during the reasoning process and they are stored in the working memory. Expert system does inferential computing using inference engine which carries out the searchthrough the knowledge base either to prove hypothe

37、ses or to arrive at a conclusion.Explanation facility tells the user why particular information is required and how/ the systemhas arrived at a particular conclusion 13.Thus the expert system acts like a store house of expert s knowledge to give solution to user squery in a particular manner. There

38、are three major categories of expert systems namely rule-based systems ; case-based systems ; and hybrid systems .Rule-based system comprises of a set of rules formulated using knowledge of several experts and rule interpreter. When a new problem is posed to the system, the rule interpreter decides

39、which rules to apply and determines the result from the facts given to the system by the user 16. Some of the pioneering rule-based expert systems are MYCIN, TAXMAN and JUDITH. MYCIN is designed to provide expert advice on the diagnosis and treatment of blood infections to a physician who is not an

40、expert in the field of antibiotics. The other systems, JUDITH and TAXMAN were designed for use by lawyers and for taxation of corporate restructuring respectively 17 and 15.In the case-based system a database is created using past cases. When a new case is fed, for which the user is seeking the solu

41、tion, the system compares this (instantaneous case) with the cases in the data base. It then identifies and displays the information of the most matching case(s) from the data base that facilitates the user to arrive at the decision. FINDER and SHYSTER are the examples of this type of system develop

42、ed using legal reasoning 31 and 18.Hybrid system is one which combines above two methods of reasoning in order to attempt to answer the problem. Some typical examples of hybrid system are CABARET, GREBE, PROLEXS and IKBALS. CABARET is an expert system that deals with US income tax law relating to th

43、e deduction for expenses relating to a home office developed by Rissiland and Skalak 19. Branting 5 designed GREBE for the domain of Texas workers compensation law. PROLEXS developed by Van Opdrop et al. 32 is a Dutch expert legal system, focused on the domain of landlord tenant law. The IKBALS by V

44、ossos et al. 33 operates in the area of credit law.4. Expert system for settlement of disputes in indian“constructionIn the Indian context, database in the form of settled cases of -construction I disputes are available in the Arbitration Law Reporter (Arb LR) and All India Reporter (AIR). Besides,

45、some primary guidelines such as decision support systems developed for resolution of disputes arising out of different clauses by some researchers are also available 9, 8, 3 and 2. These researchers have concluded that such decision support systems can be synthesised to convert them in the form of a

46、n Expert System which will help in reduction of time required in giving decisions. Since the expert system would contain a huge database, it will serve as a checklist for the contract administrators to predict the strength of their cases before going for litigation. The data available can be matched

47、 with the current situation and it could be predicted that, which party may be at fault. Once this is known arbitration procedure can be either avoided or at least can be expedited. In turn it will reduce the filing of disputes as the concerned party already has the idea of likelihood of decision. A

48、lso it will be helpful to the arbitrator and to the judges, since they will be having huge database of similar type of cases readily available for reference.Many times it so happens that the claim can neither be completely accepted nor rejected, but there is partial acceptance of the claim. This is

49、assessed based on the extent of defaults of parties in the disputes and it is also known as apportionment of the claim. Details of the apportionment if stored in the knowledge base, it can serve to detect the extent of defaults of parties and arrive at the weightage of the claim admissible in favour

50、 of any party. Thus an expert system would prove extremely useful in cases requiring apportionment of claims.The area/domain of construction，disputes being very large, an attempt has been made to develop a rule-based system module for time delay and extension clause in c construction contract 12. Wh

51、ile designing a system, questions are formulated using available cases from All India Reporter (AIR), Arbitration Law Reporter (Arb LR) and arbitration awards. The arbitration awards are not published and hence collected through personal contacts.5. Development of rule-based system for time delay an

52、d extension clauseIt has been seen in most of the case studies that the frequency of disputes over Time delayand extension has greater implications in terms of the cost and time of the project. Every delay, be it regarding payment, or site handing over, or temporary stoppage of work leads to time lo

53、ss which eventually prompts invoking of Time delay and extension clause. Therefore itbecomes necessary to understand all aspects of disputes arising out of time delay and extension clause; which is explained below in a rule-based expert system form.The development of rule-based system follows a thre

54、e step approach. The first step is to understand the cause and effect relationship of the dispute. The second step involves formulation of broad domains in which all the causes fit in. The last step is to develop the rule base to predict the plausible effects for these identified domains.5.1. Cause

55、and effect relationship of disputesThe disputes arising out of time delay and extension are of varied nature. These disputes can be studied in two stages for their better comprehension and analysis. They are identification of different delays i.e.,cause and its effect i.e., claims arising out of the

56、se delays.When we consid er cause and effect relationship, one must bear in mind that one effect mayprove to be cause for the subsequent effect , e.g. when we consider pair of situationscausing delay and type and quantum of delay as cause and effectthe neetspectively, in level type and quantum of de

57、lay becomes the cause and the claim on account of delay 三 南 Full-size image (6K)Fig. 1. Cause and effect relationship of disputes.Types of delays ascause and claims aseffect are discussed below.5.1.1. Types of delayThe delay occurring in a project can be classified into number of types depending upo

58、n thestages at which it occurs as well as on the nature of outcome, i.e., claims. This defines the criticality of the delay in the overall project completion and its impact thereafter. The delays are accordingly classified as critical delays-criticandelaysnon Contract definesobligations of parties to meet the project performance including schedule and also the recourse in the event of