问题 问答题 论述题

背景:

在对某输油管线的epc总承包过程中,承包商设计部对业主原来的设计提出了优化建议书,通过从新选择管线线路而将原来的管线长度降低了40m。

业主在得到承包商此设计优化不影响工程的原定各项技术指标的保证后,以变更的形式批准了承包商优化建议书,并提出按合同规定的变更处理,即根据删减的工程量来减扣合同款。承包商不同意,认为本项目合同标明为“固定总价合同”,即使删减了工程量,也可以拿到全部合同额,所以只要业主批准设计优化就可以了。

问题:

(1)在此案例中,由于承包商提出设计优化给项目带来的利益由业主一方单独享有的做法是否正确?说明理由。

(2)什么是固定总价合同?其价格是否绝对不变?本案例中是否可以如承包商理解的即使删减了工程量,也可以拿到全部合同额?

(3)在此案例中,承包商在具体做法上是否存在不妥之处?承包商如何做才能更主动地享有设计优化带来的好处?

(4)如果该工程为国际工程,针对此案例,承包商可依据的国际惯例是什么?

答案

参考答案:

(1)由业主一方独享由于承包商提出设计优化给项目带来的利益不对。

因为承包商在设计中对业主原来的设计进行优化,显示了承包商的技术力量和实力,且设计变更不影响原工程的各类技术指标,并且有助于工程按时甚至提前完工,按照国际惯例,承包商提出设计优化给项目带来的利益应由合同双方分享,业主只能根据删减的工程量扣除一定比例的款项。

(2)

固定总价合同的价格计算是以图形及规定、规范为基础,工程任务和内容明确,业主的要求和条件清楚,合同总价一次包死,固定不变,即不再因为环境的变化和工程量的增减而变化。

固定总价合同在合同涉及的条件有变化的情况下,合同价格不是绝对不变的。如本案例若根据合同实施变更,其合同价格也应做相应的调整。

所以在本案例中,即使合同标题为“固定总价合同”,承包商也拿不到设计优化减少了工程量前的全部合同额。

(3)

承包商对业主的设计提出了优化,显示了承包商的技术实力,但在具体做法上欠妥,承包商的设计部在提出设计优化前应咨询合同部的意见,应考虑如何从设计优化中获得最大利益。

由于合同没有明确规定承包商的设计优化作为变更被批准的具体处理方法,承包商在此设计优化建议书中本应提出进行此优化的条件,即优化带来的好处应由承包商与业主共同分享,作为实施优化的前提,从而争取主动。

(4)

在国际上,针对本案例,承包商可依据的国际惯例有fidic合同条件“价值工程”条款。

阅读理解

“We do look very different; we’re older. Leo’s 38, I’m 37. We were 21 and 22 when we made that film. You know, he’s fatter now -- I’m thinner.” So says Kate Winslet, who is thrilled at the 3-D re-release of Titanic to coincide with the 100th anniversary of the ship’s demise. “It happens every time I get on any boat of any kind." She recalls. There are all the people who want her to walk to the front of the ship and re-create her famous pose, arms flung wide. Most people remember the tragedy: The British passenger ship—said to be unsinkable—hit an iceberg and sank on April 15, 1912, during its maiden voyage from England to New York City. More than 1,500 people died. But little known is what the world learned from the sinking to prevent future incidents.

Probably the greatest deficiency (不足) of the Titanic was that she was built 40 years before the widespread use of the wonderful invention radar (雷达). Her only defense against icebergs and hidden obstacles was to rely on manned lookouts. On that fateful night the eyesight of trained lookouts only provided 37 seconds of warning before the collision.

Traveling at nearly 30 miles an hour, the Titanic was moving far too fast to avoid the huge iceberg. The warning did prevent a head-on collision as the officer on the bridge managed to turn the ship slightly.

The last ship to which it could send an SOS message was the California. She was within ten miles of the Titanic during the disaster, but her radio operator went to bed at midnight and never received any of the SOS messages from the Titanic. That was one of the important lessons learned from the catastrophe, the need for 24-hour radio operators on all passenger liners.

Another lesson learned was the need for more lifeboats. The Titanic remained afloat (漂浮) for almost three hours and most of the passengers could have been saved with enough lifeboats.

1,500 passengers and workers died in the 28 degree waters of the Atlantic. Out of the tragedy, the sinking did produce some important maritime reforms. The winter travel routes were changed to the south and the Coast Guard began to keep an eye on the location of all icebergs. The new rules for lifeboats were obvious to all. There must be enough lifeboats for everybody on board.

The most important lesson learned was that no one would ever again consider a ship unsinkable—no matter how large or how well constructed. Never again would sailors place their faith in a ship above the power of the sea.

小题1:The text mainly tells us ______.

A.the reason why the Titanic sank in the Atlantic Ocean

B.how the unsinkable ship of Titanic sank in the Atlantic Ocean

C.the lessons that we could learn from the accident of the Titanic

D.the things we should do to protect the lives on the ship小题2:According to the passage, which of the following could we infer?

A.If the captain had been more careful, he could have had the chance to save the Titanic.

B.If radar had existed 40 years ago, the Titanic would have never disappeared from the world.

C.If the lookout had had much more experience, he could have had the time to save the Titanic.

D.If there had been enough lifeboats on the Titanic, the Titanic would not have sunk in the Atlantic.小题3:What would be the best title for the passage?

A.Lessons from the Titanic

B.Technology is Important

C.Demands of Passengers

D.Power of Sea小题4:What’s the sailors’ attitude towards the ships after the tragedy?

A.They think there really exists the unsinkable ship.

B.They think ships could eventually defeat the sea.

C.They think there is no power that could control the sea.

D.They think the bigger the ship is, the safer it is.

判断题