工程設計疏失契約罰款之研究-以設計契約數量與竣工數量差異為例

在公共工程日益複雜化，其所涉及之技術領域亦愈趨複雜。有關設計契約數量與竣工數量差異所衍生之扣罰款問題，主辦機關常採用工程會勞務採購契約範本第14條第(十)款：「機關依廠商履約結果辦理另案採購，因廠商計算數量錯誤或項目漏列，致該另案採購結算增加金額與減少金額絕對值合計，逾該另案採購契約價金總額5%者，應就超過5%部分占該另案採購契約價金總額之比率，乘以本契約價金總額計算違約金。但本款累計違約金以契約價金總額之10%為上限。」之規定辦理。設計顧問公司依據設計當時之工程環境條件規劃設計及研擬施工計畫後編列預算。後因工程環境改變或新材料、新工法應用等因素，以致竣工數量或項目與原採購契約之數量或項目不一致之現象。是否屬於「設計疏失」仍有待討論。政府採購法第63條於108年5月22日修正公布，然甚多主辦機關是否有依據範本辦理值得探討。本研究即蒐集公共工程案例進行資料分析與研討，並對設計標之相關專家進行訪談，就各專家之立場角度，對設計疏失契約罰款之法規、契約、案例、訪談做歸納彙整，並進而提出本研究之結論與建議，供業界參考。

關鍵字

罰款；設計；契約；疏失；訪談

並列摘要

As public works become more complex, the areas of technology involved are becoming more complex. Regarding the deduction of fines arising from the difference between the number of design contracts and the number of completions, the organizer often adopts Article 14(10) of the Model Labor Service Procurement Contract Model: “Organizations conduct separate purchases based on the results of the performance of the manufacturers, due to incorrect calculations by the manufacturers or If the item is missing, the total amount of the purchase settlement settlement and the absolute amount of the reduction amount will be greater than the total amount of the purchase contract price of more than 5%, and the ratio of more than 5% of the purchase contract price to the total amount of the purchase contract shall be multiplied by this The total amount of the contract price is calculated as liquidated damages. However, the accumulated liquidated damages in this paragraph is subject to the upper limit of 10% of the total contract price. The design consultant company budgeted after designing and developing the construction plan based on the engineering environmental conditions at the time of design. Due to factors such as changes in the engineering environment or the application of new materials and new construction methods, the number of completed projects or projects is inconsistent with the quantity or project of the original procurement contract. Whether it is a "designal negligence" remains to be discussed. Article 63 of the Government Procurement Law was amended and promulgated on May 22, 108. However, it is worthwhile for many organisers to have a basis for handling the issue. This research collects public engineering cases for data analysis and discussion, and interviews relevant experts of design standards, and summarizes the regulations, contracts, cases, and interviews for designing negligent contract fines from the perspective of each expert's position, and then proposes The conclusions and recommendations of this study are for reference by the industry.