Dear Class of

Following are some questions sent by the alumni of the class of Autumn
2007 and my replies thereto, which you may find useful.
Regards,
Dr. Sam.
Dr. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

-----Original Message----From: ajammal@ellisdon.com [mailto:ajammal@ellisdon.com]

Sent: 03 October 2007 14:03
To: Dr. Sam
Subject: two questions
Dear Mr. Jammal,
My comments are given in red below:Dr. Sam,
I would appreciate if you can advise and respond to my case:
-We have a contractor who .. and have
awarded them a contract on .. to build 10 small towers
as one contract and one important point was before award is the
contractor is to provide a crew for each tower and in contract there
were two mile stone dates for handing over. Why two is because there are
two plots one with four towers and the second with six towers.
Contractor submitted a baseline schedule and we reviewed and gave them
status B with comments.
Contractor submitted an EOT #2 which was reviewed by the PMT and
assessed and some time was granted to the GC and EI was issued to the
GC.
The GC refuses to comply to the EI and sends a letter after two months
advising the engineer that he doesn't agree to the assessment and is
entitled for more.
---Now we know that as per contract and FDIC once EI for EOT is issued
it his duty to submit a revised schedule/// If the Engineer instructs
the Contractor to submit a revised schedule, the Contractor is not under
an obligation to submit a revised schedule showing the revised
completion date as the new date according to the EOT awarded, if the
Contractor believes (and can prove)that he is entitled to more EOT. His
obligation is to submit a revised schedule showing the new completion
date up to which he can prove his entitlement to EOT. Is the letter he
sent accepted as enough to delay submission of revised schedule (Not
Clear)

secondly can the contractor reject the EI by the engineer? Contractor

can disagree.
Another question:
The contractor submitted his EOT to the engineer and we assessed his
claim and was granted 4 days instead of 40 days he is asking for.
Several workshops were made to give him chance to explain his
substantiation . At the end he is granted 5 days instead of their 39
days.
From the start there was a float in the baseline schedule between each
building of about 2 weeks between each building.
The main dispute between the PMT and the Contractor is that the GC
insists that the float is his own and not to be touched and if there is
any delay in building caused by engineer or client changes this delay
will cause delay to the next building and the float is to remain
untouched. The PMT logic is any delay is to be taken from float and
since in contract all the towers must have separate crews if there is a
delay on one building the GC must mitigate and recover the lost time and
still meet the mile stone date.
Please advise if the float is the right of the GC and is it that any
delay from design is to drag the building and will reflect on other
buildings? At a time of delay the Contractor has an obligation to
mitigate the delay. Re-scheduling the work to consume the float is part
of that obligation.
Regards,
Dr. Sam.
Dr. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

Hope the cases are clear and if not i can explain further
Thank you
___________________________
Ahmad Jammal
Project Director

From: Abraham Varghese

Sent: Tuesday, September 25, 2007 10:09 AM
To: 'sam99@eim.ae'
Subject: doubts on fidic
Sir,
Can you please give your valuable in sights to the following:

1. Is main Contractor responsible for Nominated s/c delays. Yes, under FIDIC 4th
Edition Contracts. No, under JCT Contracts. It has been emphasized time and again the
Nominated contractor is considered to be s/c to the main contractor and Main
Contractor is responsible for delays caused by Nominated contractor. I have the following
reservations in this regard
a)

Other than stating that nominated s/c will be considered as s/c to the main
contractor, Fidic does not ? specifically address the question of delays by
nominated S/c. FIDIC does address the question. Pursuant to Sub-Clause 4.1,
the Contractor shall be responsible for the acts, defaults and neglects of any
Subcontractor. Pursuant to Sub-Clause 59.1, a Nominated Subcontractor falls
into this category of any Subcontractor.

b)

There is a clear difference between the rights of nominated S/c Versus normal
S/c , since the employer has the right to demand the proof that he has
paid the nominated S/c. This is not a Nominated Subcontractors right !
This is the Engineers entitlement. (See Sub-Clause 59.5)This prevents
the Main contractor from using money as a tool in forcing the nominated
contractor to discharge his obligations to main contractor. This is very
important in construction contracts , since the work does not proceed
exactly as planned and the nominated s/c has to be very very flexible in
terms of complying with the main Contractor. This may or may not be the
case depending on various circumstances, but in either case the
responsibility of the Contractor referred to in item (a) above cannot be
affected by such assurance of payments.

c)

It was stated in yesterdays seminar that since Main contractor has a means of
countercharging the nominated S/c , he is responsible for delays caused
by Nominated S/c. But in this part of the world, the nominated s/c also
restricts his liability to 10 % of his contract value. In this case what
remedy does the main contractor has against the Nominated S/c.
Pursuant to Sub-Clause 59.2 (b) , the Employer or the Engineer cannot
nominate a Nominated Subcontractor who would not save harmless and
indemnify the Contractor against Main Contract penalties, if the Main
Contractor objects to such nomination. The limitation of damages for
nominated S/c to 10 % of his contract Value, will in turn invalidate the
clause which states that Nominated S/c has to indemnify the main
contractor against the loss caused by him, since the damage is limited to
10 %. Employers should not limit the penalty to 10% of Subcontract
Price when they invite Tenders to select a Nominated Subcontractor.

d)

Does the law , come to main contractors rescue and can the main contractor,
claim damages from nominated s/c even though the main contractor has
agreed that as per contract the liability of nominated s/c is limited to 10
% of Contract Value. Not unless specific provision is made in the
Subcontract that the Subcontractors liability to indemnify is not limited by
such 10%.

2. In a lump sum contract, the brand of a particular pump was changed .All other works
related to the above remain constant. Contractor had by mistake priced the above item
exceptionally high in the original tender. While pricing the above variation, the contractor argued
that he will not delete the original BOQ item and calculate the new rate, since

a. He had by mistake priced this item as high and if a new rate is developed he
will have to offer savings even though his cost for the pump had increased.
b. If the rule is that a new rate has to be developed , then consultant can
,manipulate the same to get cost savings by changing the specification slightly.
c.

In a lump sum contract, the contractor takes considerable risk and he should
take the risk / or benefit of any rate being high or low.

The Parties have agreed in the Contract that the contract rates would be used to value variations
(irrespective of whether they are too high or too low). The correct method of pricing this variation
is to find out the price of the specified pump at the time of tender and the price of the new pump
now specified, and any difference between these two prices together with overheads and profits
to be use to adjust the contract rate.
Consider the opposite scenario. If the contractor mistakenly priced the item exceptionally low in
the Tender, would you now correct it to reflect the actual price of the revised pump ?
Regards,
Dr. Sam.
Dr. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

Regards
Abraham Varghese
Contracts Engineer

Dear Mr. Benjamin,

My comments are given in red below:----- Original Message ----From: Brennjz Idor "brennjz23@yahoo.com"
To: "Dr. Sam" "sam99@emirates.net.ae"
Date: 2007-10-12
Subject: Particular COC on FIDIC

Dear Dr.Sam,
In the Particular Condition of Contract, if I put a clause saying, "Clause xxx shall be
deleted or this clause shall be deleted.", what will be the impact of this particular clause
in the whole context of the COC? Is this a silent clause where the Contractor could use
later on for their claims or any other purposes which could be of beneficial to them?
What is the right statement I have to put to totally get rid of a particular clause and its
impact to the COC? Please advise.

It depends on the Clause. If for instance you delete the price fluctuations clause, then yes,
the Contractor would assert that the contract is silent about price fluctuations and claim
that as an ambiguity. Therefore the wording in the Clause should be amended through
Part II to state that the Contract Price shall not be adjusted due to price fluctuations. If
you delete the Performance Security Clause there may not be any problem with the
remainder.
If you want to totally get rid of a Clause, then you have to also ensure that all related
Clauses are also amended appropriately in order to avoid any discrepancy/inconsistency.
It is not possible to give a general guideline as FIDIC is drafted to allow for most of the
situations encountered in construction contracting. Deleting a Clause may sometimes
require a complete redrafting and/or extensive changes to the remainder.
Regards,
Dr. Sam.
Dr. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

Thank you very much.

Best Regards,
Benjamin
Dear Mr. Rajeshkumar,
My comments are given in red below :----- Original Message ----From: rajesh kumar "errajeshkumar@yahoo.com"
To: qs_dubai@yahoogroups.com
Date: 12:43 PM
Subject: Need some information, kindly help me
sir
we are the main contractor & we are doing Sub base & Road Base
our subcontractor is doing Asphalt base course & Wearing Course
everytime in his payment, they are claiming for
asphalt laid in extra depth = (Total Volume of delivered bitumen to the site) ~(volume m3 x density
of asphalt) I presume that, in your subcontract with them you have agreed to pay for asphalt courses
of specific thicknesses using agreed rates/m2, and since the Sub base/ Road base is not of even
surface (or out of tolerence), they are now claiming for the additional thickness required to achieve
the course thickness, and reply as follows:Note: no allowances for wastage
plz clarify
1. Is it payable If above is the case, then yes.

2.in our agreement with subcontractor nothing is there See above assumption.
3.they are using density of asphalt as 2.5 tonnes/m3 Ask them to demonstrate its accuracy.
4.what is the exact density of compacted asphalt This depends on the mix. ( could be 2.4 - 2.6 t/m3)
5.upto my knowledge the difference in the road base has to be adjusted in the base course or wearing
course (adjusant layers) True, but did you agree with the subcontractor to do that without additional payment
?
6.ok at some places instead of required 70mm thick wearing course (they are laying at one place 50, 55, 60,
65, 70, 75, 80....)
but they are getting payment for 70mm eventhough they are laying less than the specified like 50, 55, 60, 65
if they are laying more than 70mm they are collecting money by additional pay for asphalt If the subcontract
is silent about this issue, then why don't you also apply a reduction where it is less than 70 mm ? By the
way, is the Engineer accepting 50,55,60 mm thicknesses where 70 mm is required ?
8.before laying the asphalt they have to check the level (joint survey) or not This should have been thought
about not now but at the time of entering into the subcontract.
9.who is responsible for that -ditto10. In the aggreement nothing is mentioned regarding the Joint survey
or allowances for each layer (in our BOQ preambles also nothing is noted down) These are the typical
problems one has to face when the documents are drafted in a loose manner. It is very likely that you may
have to pay for the additional thicknesses if the subcontractor can prove that his rate is applicable only for a
specific thikness.
Regards,
Dr. Sam.

Dr. Indrawansa Samaratunga PhD, DSc

FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

kindly advice me to handle this problem................