Risk Management in Price Adjustment Contract: A Case Study of a Construction Project in Vietnam

During the past years, Vietnam’s construction projects used lump-sum contract and fixed unit price contract as the universal contracts. The lump-sum contract has advantages of easy acceptance of work and contract payment. If the Contractor implements the drawing and specs correctly as agreed, they would be paid 100% without any dependence on increase or decrease of the original work in the contract, or any price fluctuation in the market. While fixed unit price contract has advantages of enabling all parties to quickly implement contract payment. That is because the unit price is already fixed no matter what the real price in the market. The remained problem is determining the volume of work under actual situation. This part is quite easy to carry out and unlikely to cause argument.

However, both of these two contract forms revealed their big disadvantages in "price-storm" from the end of 2007 through the end of 2008. At that time, prices of fuels and materials such as gas, petroleum, steel, cement, brick, sand, stone, electric cable, wood, glass increased suddenly. Some materials increased the price three times. This is not the first time that contractors encounter problem of price fluctuation. At present, the price is gradually approaching the global price. Therefore, construction projects during this period were affected significantly by the “price-storm” and many contractors face risk of bankruptcy.

To solve this problem, the Prime Minister launched document 164/TTg-CN on January 29, 2008 saying “...deal with construction cost in lump-sum contracts”. After that, some authorized institutions like Ministry of Construction and Department of Construction launched many documents to guide adjusting form’s contractual prices of lump-sum contracts and fixed unit price contracts to contract price based on adjustable price form. The purpose of these documents is to solve the difficulties for Contractors and hasten projects implement.

After this event, contract price based on adjustable price form (volume under actual situation and cost adjusted under conditions in the contract) was preferred to use for many projects. However, most of this type of contract only has a very general content as “adjustment under guidance of the Government in case of price fluctuation” without any specific scope and methods to adjust. The result is, during the process of implementing the contract, there were many arguments on determining the adjusted unit price to pay the Contractor. Until now, many projects cannot execute price adjustment.

Mrs. Hoang Thi Hai Anh made a research in which she wanted to point out the problems in signing and implementation of the contract that has contract price based on adjustable price form of a project in Ho Chi Minh City, Vietnam.

Conclusions

Form and lump-sum or unit price contract is no longer suitable for big construction projects especially those with long construction time due to fluctuation in price of materials in Vietnam as well as in other countries. Using contracts under adjusted cost now is encouraged by the Government. However, during contract signing, all parties need to bring out their own rules clearly and specifically, and have to commit to obey those rules. Through the case study, there are two reasons revealed which lead to troubles when implementing the contract such as:

1. The Contractor intentionally proposed low price to win the tender. However, they misunderstood the meaning of the contract under adjusted cost. They think that although the price bid was low, still, they will be paid according to real price on the market during the time of payment, where actually, price adjustment is just to supplement fluctuated price between the time of signing and paying the contract, not dependent on if the tender price is high or low.

2. The Client was passive and did not foresee difficulties when paying the contract. They also relied too much on Government guidelines. Before planning the contract, they did not put forth conditions in relation with adjustment price such as adjusted scope, formulas, and bases to determine adjusted cost.

Recommendations

In the long term, the contractors need to know how to protect themselves and have to consider carefully when receiving the tender to implement the contract accurately. They should also be fair to accept loss. All parties need to learn experiences from developed countries to apply international rules in construction contracts. At the same time, they should also be more active and fearless to bring out conditions for cost adjustment with appropriate characteristics, scale and schedule for each project.

Her thesis abstract is copied and posted.

Abstract

Risk management in construction contract is always important items helping reduce the arising damage or disputes and is a solid basis to force the parties to fulfill their responsibilities in the contract.

In the contract, payment issues are always the core issues and often controversial if it's not really clear. Contract price adjustment due to price fluctuation is quite outstanding issue in Vietnam from 2008 to now; it has made the authorized agencies issue up to ten guiding documents within only one year to settle the problems during contract performance. With my own experiences, in this report I would like to talk about the popular errors while preparing the terms of payment of contract, especially the contracts in which form of contract price is based on adjustable price of the State-funded projects in Vietnam.

I do hope that my ideas shared above will help the Contractors and the Clients of the similar projects minimize the risks in the construction contract.