Description of works in construction contract and quality guarantee
(Правовое руководство по составлению строительных контрактов)
It is essential that the contract precisely describe the works or portion of the works to be constructed. The contracting approach chosen by the purchaser, and the procedure adopted for concluding the contract, may determine which party is to prepare the documents describing the construction to be effected (paragraphs 1 and 2). The scope of construction and the technical characteristics of the works may be reflected in the principal contract document, and in specifications, drawings and standards. The parties should clearly identify the descriptive documents which form part of the contract (paragraphs 3 and 4). The technical characteristics of the works, or equipment to be incorporated in the works, may be described in terms of operating capability rather than by reference to designs, materials and workmanship. However, in respect of some items (e.g., materials) technical characteristics may need to be described by reference to appropriate requirements as to the quality (paragraphs 8 and 9).
Specifications may describe in technical language the scope of the construction to be effected, and the technical characteristics of the equipment and materials to be incorporated in the works (paragraph 10). Specifications may have general and special provisions (paragraphs 11 and 12). The character of specifications may differ in respect of various elements of the construction (paragraph 13).
The technical characteristics of certain aspects of the construction may be defined by reference to standards. The specified standards should be internationally accepted and widely used. The standards to be applied should be clearly identified in the contract (paragraphs 14 to 16).
Drawings show in diagrammatic form the various component parts of the works. In some cases the purchaser supplies basic drawings, with the contractor being obligated to prepare detailed drawings which elaborate the technical ideas already contained in the basic drawings. The contract may provide that the detailed drawings are to be submitted to the purchaser for his approval (paragraphs 17 to 19).
Specifications and drawings may be inaccurate or insufficient, or inconsistent with one another. It is advisable to determine which party is to bear the costs occasioned by the supply of inaccurate, insufficient or inconsistent specifications and drawings (paragraphs 20 to 22).
The contract may determine the extent to which a party is to treat as confidential technical documents supplied by the other party, and the consequences of a breach of confidentiality. The contract may provide for the transfer to the purchaser of ownership of technical documents supplied by the contractor, but limit the purposes for which they may be used by the purchaser (paragraphs 23 to 25).
It is advisable to provide for a quality guarantee under which the contractor assumes liability for defects discovered and notified before the expiry of a guarantee period specified in the contract. The parties may wish to provide for certain limitations to the contractor's liability under the guarantee (paragraphs 26 and 27). Various factors may be taken into account in determining a reasonable length for the guarantee period. It is advisable to determine when the guarantee period commences to run, and the circumstances in which the period may be extended (paragraphs 28 to 31).