One of the ongoing practices in the execution of construction and assembly works (CAW) is that the work performed, after its acceptance by the contracting authority, is paid for on the basis of a basis prepared between the parties, the so-called act form 19, which describes all the performed CAW, the input quantities of materials, the value of the work, and a summary account for the amount owed by the contractor to the builder.
Often, when there are disputes about the fulfilment of the obligations of one of the parties (e.g. the contracting authority refuses to pay), it comes to the reference to the signed or the absence of a composite act form 19. But then additional questions arise - what is the legal meaning of act form 19, where it is arranged he and is it possible the findings described in it to be contested, or its absence to be overcome?
Current regulations
Currently, since 2003, it has been operating in the Republic of Bulgaria Ordinance No. 3 of 31.07.2003 on drawing up acts and protocols during the construction of the Ministry of Regional Development and Public Works (MRD), in which the conditions and procedure for drawing up acts and protocols for preparation, opening of a construction site and determination of construction line and level and for acceptance of completed types of construction and assembly works during the execution of the constructions, at individual stages or parts of them, are determined . It does not contain Act form 19 with the specified content (fulfilled quantities subject to payment), and even some other Act form 19, since the form acts in the ordinance are 17 /seventeen/ in number.
The closest in terms of content to Act No. 19 imposed in practice is Act No. 12 - for establishing all types of construction and assembly works subject to closure, certifying that the requirements of the project have been met. But since Act form 19 has not appeared in the current legislation since 2003, where is it regulated?
The repealed regulations on acts and protocols during construction
In the previous regulation, namely Regulation No. 7 of 22.05.2001 for drawing up acts and protocols during the construction of the MRD, there is an act form 19, namely a finding document for handing over the construction and construction documentation from the builder to the investor - is drawn up by the builder and the investor in the presence of the construction contractor and contains a description of the contracts for the implementation of the construction, construction documents, the executive documentation, the documentation from the building file of the object (acts, protocols, diaries and other documents drawn up during construction, etc., required by the relevant legal act); with this act, before the issuance of a permit for use, the construction and the construction documentation are handed over by the builder to the investor. But as is evident from its content, this is also not an act form 19, which is used in practice.
In the previous one Ordinance No. 7 of 26.07.1999 on drawing up acts and protocols during the construction of the MRD, on the other hand, 18 (eighteen) forms are contained, and there is no sample that corresponds to the requested content - execution of quantities subject to payment.
We can find the referred act form19, in Ordinance No. 1 for the implementation of the models for acts provided for in the rules for capital construction, adopted by the State Planning Committee, the Bulgarian National Bank and the Ministry of Construction and Architecture (Promulgated SG No. 55 of July 15, 1983, repealed SG No. 3 of January 12, 1988), which was adopted on the basis of the Capital Construction Regulations of 1980. (Promulgated SG No. 55 of July 15, 1980, amended SG No. 101 of December 25, 1981, amended SG No. 47 of June 15, 1982, repealed SG No. 16 dated February 27, 1987). In Annex No. 21 of the same (Ordinance No. 1 on the implementation of the models for acts provided for in the rules for capital construction, Promulgated SG No. 55 of July 15, 1983, repealed SG No. 3 of January 12, 1988) contains the referenced act form 19, which contains the fields "Contract value", "Account value", as well as a detailed breakdown of quantities. This is the still-used act form. 19, on the basis of which the performed CAWs are paid.
From this point of view of time, with the regulation of act form 19, concerning construction activities, which was cancelled more than three decades ago, insofar as the model continues to be actively used, it represents a typical example of an imposed custom in practice[1] and can be considered as a secondary source of law, in accordance with the law (secundum legem), and complement it (praeter legem)[2].
The evidential force of acts and protocols during construction
Accordingly Art. 1, para. 4 from the current one Ordinance No. 3 of 31.07.2003 for the drawing up of acts and protocols during construction, the acts and protocols drawn up and drawn up according to the requirements of this regulation have probative value when establishing the circumstances related to the initiation, implementation and commissioning (acceptance) of the construction works. On this issue, the judicial practice is rather uniform - the same conclusion regarding their evidentiary value is confirmed by Decision No. 404 of 09/04/2009 pursuant to Administrative Order No. 828/2008 of the Supreme Court of Appeals, 1st year, Resolution No. 227 of March 22, 2012 of the Supreme Court of Administrative Procedure No. 72/ 2012, IV year o., GK Decision No. 185 of 20.07.2016 of the State Administrative Court of Ukraine pursuant to Administrative Procedure No. 120/2016, Decision No. 1335 of 31.07.2018 of the Administrative Court - Burgas pursuant to Administrative Procedure No. 1371/2016, Decision No. 238 of 02/05/2014 of the SGS pursuant to No. 3193/2010. But this does not mean that the acts and protocols under Ordinance No. 3/2003 can be equated to official documents pursuant to Art. 179 of the Civil Procedure Code, even if persons exercising public functions participated in their drafting - the said acts and protocols are private certifying documents, to whom a special normative act gives additional characteristics[3].
Here, however, follows the logical question - what is the probative value of the acts form 19? Acts form 19 are not among the acts in Ordinance No. 3/2003, which must be issued during construction, and the rule referred to in Art. 1, para. 4 of the Ordinance, with the clarifications made for it. It is important to note that such evidentiary force of the acts and protocols is not foreseen and c Ordinance No. 1 on the implementation of the model acts, provided for in the rules for capital construction, adopted by the State Planning Committee, the Bulgarian National Bank and the Ministry of Construction and Architecture (Promulgated SG No. 55 of July 15, 1983, repealed SG No. 3 of January 12, 1988 d.), precisely which governs the referred act form 19. This does not mean that the acts form 19 cannot be used to establish the types, quantities and prices of SAW. They serve precisely this purpose and are used to establish the implementation and acceptance of SAW, but their evidentiary value is not absolute /Decision No. 62 of 20.02.2018 of the PAC under the case No. 532/2017/.
The question of the evidentiary value of the acts form 19 has found an answer in numerous decisions of the Supreme Court, issued under the repealed Civil Procedure Code of 1952, summarized by Decision No. 737 of 17.10.2012 of the Supreme Court of Appeals pursuant to Item No. 68/2012, Item II, TC – e.g. Decision No. 446/16.05.2005 pursuant to Item No. 740/2004 of Item II, Decision No. 992/4.12.2006 pursuant to Item No. 565/2006 of Item II o., Decision No. 638/24.10.2008 under item No. 302/2008 of II item o. and others. In these decisions it is held that the act from 19 prepared by the builder constitutes a private certifying document[4], through which SAWs performed in the construction process are reported[5]. The act from 19, not signed by the contracting authority, does not prove the execution and acceptance of the works and in the case of disputing its content, the contractor bears the burden of proving that he has performed the declared types and quantities of works and that they have been accepted by the contracting authority, as there is no conditionality between the obligation to sign acts form 19 and the obligation to pay accepted SAWs[6]. When it is also signed by the contracting authority, the protocol can serve as proof of the execution and acceptance of the works, but even in this case it is not used as material evidentiary force and there is no obstacle to contesting the content of the reflected quantities and values[7]. In case of disputing the content of a bilaterally signed act form 19 the execution and acceptance of the actuated works is subject to proof with all the evidentiary means permitted by the Code Procedure Code, and the assessment of whether the works have actually been carried out and accepted by the contracting authority within the meaning of Art. 264 OCA is made by the court after an overall assessment of the entire evidentiary material in the case[8].
The preparation of act form 19 as a condition for payment
Although it is not expressly provided for by Ordinance No. 3/2003, the parties, in view of the contractual autonomy under Art. 9 of the OCA can agree among themselves by force of law what is the order of acceptance of the executed SAW and when they have agreed - this should be by an act form 19 /Decision No. 48 of 31.03.2011 under Item No. 822/2010, Item II Item of the Supreme Court; Decision No. 695 of 24.04.2015 pursuant to No. 394/2014 of the General Administrative Court/. On the other hand, even if act form 19 is not expressly regulated in the contract, it is not a matter of a stipulation that places acceptance of the performed SAWs through the issuance of a document act form 19 as a condition for payment of the due remuneration to the contractor on the part of the contracting authority, if the performed SAWs are accepted /Decision No. 25 of 1.03.2013 of the Supreme Court of Appeal under Item No. 287/2012, Item II, TC; Decision of 15.01.2008 under VAD No. 116/2007/.
Therefore Act form 19 can be defined as private document, which is prepared according to the will of the parties, and proves only the circumstances included in it. But it is not provided for with this content in the current regulation, and its compilation is optional, nor can it be a condition of payment of the work by the contractor to the builder. Next, it can reasonably be said that even if the same was signed by the parties, its findings may be contradicted by all permitted means of evidence. But despite the above, the controversy surrounding everything related to it is likely to continue. And even if it is not regulated in the current Ordinance No. 3 of 31.07.2003 on drawing up acts and protocols during the construction of the Ministry of Regional Development and Public Works (MRD), act form 19 will most likely outlive it, as it has outlived the previous three, since 1983.
Ivan Nikolaev, attorney-at-law
[1] Milkov, P., Contract system in construction. Sofia: Trud i Pravo Publishing House, 2014, p. 275.
[2] Kolev, T., "Theory of Law". Sofia: "Ciela", 2015, p. 258.
[3] Madanska, N., "On some aspects of the construction contract". Commercial and bond law, no. 7/2013, Sofia: IC "Labor and Law", 2013, p. 18.
[4] So also Milkov, P., "Contract system in construction". Sofia: IC "Labor and Law", 2014, p. 274.
[5] The same is accepted in Decision No. 566 of 18.11.2008 of the Supreme Court of Appeal under No. 300/2008, TC, Item I - Acts No. 19, according to their legal characteristics, constitute private testifying documents and their content is subject to dispute, i.e. they have no absolute evidentiary value in relation to the SMRs reflected in them as performed and the actual volume, nature and value is subject to proof.
[6] It is in the same sense Decision No. 511 of 24.06.2010 of the Supreme Court of Appeal under Item No. 25/2010, Item I, TC.
[7] Resolution No. 496 of 04.11.2019 pursuant to No. 359/2019, as I so of the Supreme Court, Decision No. 119 of 01.03.2017 pursuant to No. 2486/2016, as I so of the Supreme Court, Decision on etc. No. 771/2005 and Decision on city d. No. 648/2003 of the I t.o. and others.
[8] And so Decision No. 318/17.10.2011 of the Supreme Court of Appeals pursuant to item No. 728/2010 of Item II, Decision No. 48/31.03.2011 of the Supreme Court of Appeals pursuant to Item No. 822/2010 on II item o. and Decision No. 250/11.01.2012 of the Supreme Court of Appeal pursuant to Item No. 535/2010 of Item II, Decision No. 308 of July 7, 2014 of the Administrative Court - Plovdiv pursuant to Item No. 298 /2013
