Sp08-Q&A-2

My comments on the following questions are given in red below, which you may find useful.

Regards,

Prof. Sam. Prof. Indrawansa Samaratunga PhD, DScFRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEngChartered Quantity Surveyor and Registered Arbitrator / ExpertAustralian Inst.of Qty.Surveyors-Middle East RepresentativePO Box 23461, Dubai, UAE. T +971504588949 F +97143378668

----- Original Message -----From: sathis jayaweera To: [email protected]: Mon, 05 May 2008 23:50:21 -0700 (PDT)Subject: Class of Spring 2008 - Q&A 1

Dear Prof. Sam This Question related to CESMM3 with Remeasured Contract. As we studies the reinforcement steel measured in "Tonne" in accordance with CESMM3.In practice at the post contract stage, we take the quantities from approved BBS (bar bending schedules) and generally reinforcement laps are included in their.Looking into CESMM3, paragraph 5.18 this matter not much clear it say “ The quantities shall be computed net using dimension from Drawings,…….” Please clarify, the lap lengths (design laps or/ and normal laps) need to be deducted from the BBS?Normal LapsCESMM3 requires all work to be measured net and therefore normal laps should not be measured. Generally, a bent bar should be out of a whole bar length and not from joined pieces (unless permitted, but at Contractor’s cost) and therefore as far as the unbent bar does not exceed a standard bar length, the question of laps does not arise. If the BBS shows otherwise, care should be taken to deduct such laps. If the length exceeds a standard bar length, still the laps should not be measured as the Rate is deemed to include the cost of laps because the Item Description would state the unusual bar length according to Rule A7. If however the BOQ Compiler forgot to follow Rule A7, then the Contractor should not suffer for that, and the laps should be measured.

Design Laps

If the Design Laps are either not measured in the BOQ as Special Joints according to Classification G550 or referred to in the Preamble, then they should be measured and paid as missed-out items, or alternatively, if the Contractor agrees, the laps could be added to the reinforcement quantities.

Regards,


Thanks W.P.S.K. Jayaweera

----- Original Message -----From: ramkumar To: "Prof. Sam" <[email protected]>Date: Wed, 07 May 2008 11:03:25 +0400Subject: clarificationsDear Prof Sam, We need some clarification from you for an ongoing project. The original time for completion of the project is 240 days, which was on Sept 2007.In that period we have carried out only the materials and shop drawing submissions. The actual site works started by January 2008 and all the works are expected to be completed by August 2008.In this scenario, pl advise us on the following. 1. whether we can submit new rates for all the works or the price escalation in material, labour ,plant to be worked out and included in the EOT claims? If you can prove that the Employer prevented you from procuring the material and Plant within the original Time for Completion, you may have a good case. Regarding labour, your entitlement may be limited to in-house wage increases and not to procuring labour from market at higher prices. 2.For any new items, can we able to give rate analysis based on the present market rates or contract rate schedule only to be used? If the new items you are referring to are variations which are not necessary or not appropriate to complete the original scope of work, then you can claim new rates provided that you served a timely notice pursuant to Sub-Clause 52.2 (a).

Regards,


Regards

Ram kumar

-----Original Message-----From: sathis jayaweera [mailto:[email protected]] Sent: 04 May 2008 12:00To: [email protected]: Re: Test Email to "Class of Spring 2008"

Prof. Sam I, W.P.S.K. Jayaweera. The my second Question as follows.

1.) If CESMM3 is a method of measurements of a BOQ. Can we consider as CESMM3 is a part of Contract documents ? Generally Contracts state what the Contract Documents are. You have to study that provision in detail and verify whether there are adequate links to consider that CESMM3 has been incorporated as a Contract Document. A mere reference in the Preamble to say that the BOQ is prepared according to CESMM3 does not make CESMM3 a Contract Document.

2.) Supposed, in a BoQ some items were not line with the CESMM3, if the Contractor point out that. What action the Engineer needs to take and any consequences ( like variations) The completed work should be measured according to CESMM3 and new rates should be agreed/fixed for all items that the BOQ Compiler failed to measure correctly or missed-out. It would not be a variation, but a correction of incorrect measurements.Regards,


ThanksW.P.S.K. Jayaweera

----- Original Message -----From: Basheer To: [email protected]: Tue, 06 May 2008 10:21:41 +0400Subject: RE: Dear Class of Spring 2008 - Q&A 1

Dear Sir,

I attended your class of spring 2008, it was very much useful for a APC candidate like me, thank you very much for your valuable time.

Kindly clarify the following

1) What are the main differences between FIDIC red book 1987 and 1999. Not easy to answer in a short reply. There are many differences, but the rights, obligations and liabilities of the parties are much the same in both.

2) I am working for a cost consultant, one of our small scale project is a design and build contract ended with many additional works, I was not involved in this project during the construction, now I am evaluating the final accounts since the person who worked for this project left our company, these additional works neither have any variation orders nor recorded in minutes of meetings, so as a professional, am I suppose to approve these additional works?, note that as per Contractor, all additional works were instructed by Client, but no records are available. It is quite unlikely that any Client would allow a Contractor to build any additional things on his project without a request/instruction. If these additional work are clearly additional to the original scope of work (or original design intent / performance specification), then the Contractor is entitled to an additional payment.

Thanks and Regards

--------------------------------------------------------------------------------------------

Mohamed Basheer (MSc, BSc)

-----Original Message-----From: sathis jayaweera [mailto:[email protected]] Sent: 04 May 2008 09:36To: [email protected]: Dear Alumni of the "Sound Contract Administration" Course, "Class of Spring 2008"

Prof. Sam I, W.P.S.K. Jayaweera. I address the following question? As we know, In UAE mostly used FIDIC 4th, type of COC, and that COC for Work of Civil Engineering Construction. Notwithstanding the Consultant and Employers are used same COC for Works for Building Construction. Is this correct practice? There is no reason why FIDIC 4th cannot be used for a building contract as long as Part I - General Conditions are customized through Part II – Conditions for Particular Application, to suit the circumstances (Remeasurement to Lumpsum etc.)

Regards,


Thanks

W.P.S.K. Jayaweera.

----- Original Message -----From: "Noufel K.Mohamed" To: [email protected]: Mon, 05 May 2008 15:15:24 +0400Subject: Float in the Clause 14 Program

Dear Dr. Sam Please spare few minutes to answer. In the Jan 2008, For one question in the class, you answered that Float in Clause 14 program submitted by the Contractor is belongs to Whoever utilize it first, means either the Contractor or the Client who utilizes the Float first, they are eligible for it. Let me correct this. I did not say that the Float belongs to whoever utilizes it first. What I said is that “whoever gets to the Float first can utilize it”, as the Float belongs to the Project and not to an individual.

For this answer can you please give any supporting clause in FIDIC or some thing? The Contractor’s obligation to mitigate delays that could be inferred from Sub-Clause 41.1 and the Contractor’s implied obligation to mitigate delays existing in law, do not permit a Contractor to hang on to a Float and not allow it to be consumed by the delaying event. In other words, if a Contractor produces a recovery programme or a delay impact programme, still showing the Float, then he is not discharging his obligation to mitigate.

Regards,


Thanks & Best regardsNoufel

----- Original Message -----From: Ashlyn Almeida To: " Prof. Sam " <[email protected]>Date: Mon, 05 May 2008 17:12:59 +0400Subject: Re: Sp08-Q&A1Dear Prof Sam

We have recently signed a contract with a contractor. Dewatering was a requirement on the job. It appears from the contractors price he did not anticipate dewatering and thought the water table to be lower inspite of the soil investigation report being provided indicating the water table. Unknown to even us the Engineer the discharge point for dewatering is some 6-8 kms away from the site. Every tender states it to be mandatory that the contractor visit the site and familiarise himself with the requirements. The contractor assumed the point to be 100-200 m away, if he had to dewater. Does the contractor qualify for a variation since the discharge point is so far ?

If he qualified his Tender regarding his assumption of 100-200m distance and the Employer accepted the Tender unconditionally, then the new distance is a variation, irrespective of whether or not he visited the Site. If there was no such qualification/acceptance and if all the documents are silent about the distance, then it is at Contractor’s risk. This comment equally applies to the question of water table.

Regards,


regards

Ashlyn

----- Original Message -----From: sathis jayaweera To: [email protected]: Mon, 05 May 2008 05:37:25 -0700 (PDT)Subject: Dear Class of Spring 2008 - Q&A 1

Dear Prof. Sam In accordance with RTA Conditions of Contract Sub Clause 44.2, if the Contractor has not fulfill Sub Clause 44.2(a) & (b) The Engineer shall not make any determination for Extension to time for Completion. During the time of Sound Contract Administration training. I understood (if I am wrong, Pls correct me), the law may allow, the Contractor entitlement even the Contractor has not serve the notices. Yes, if the notice requirement is not a condition precedent.Looking into the above matter. What opinion the Engineer can give to the Employer and the Contractor? The Engineer should inform the Employer that the Contractor’s entitlement exists, but the Engineer is prevented from determining it because of the words “shall not”, and therefore to restore it to the original wording of FIDIC through an addendum signed by both Employer and Contractor, so that the Engineer can determine the EOT.Is there any provision in CoC (other than law) to sort out this types of dilemma? Not if the Engineer’s authority is removed by use of words “shall not”

Regards,


Regards W.P.S.K. Jayaweera

----- Original Message -----From: "arunachalam.murugan" To: [email protected]: Mon, 05 May 2008 15:43:38 +0400Subject: RE: Dear Class of Spring 2008 - Q&A 1

Dear Professor Sam,

Please accept my heartfelt thanks for your valuable continued service to the Industry and to your Students, specially for your intention to extend your knowledge to us through this Q & A.

I am most admired by your 30 hour Training which has really provided me a much high confidence level in arguing/ discussing the contractual/ commercial matters with my peers and Seniors in a much better way I have ever done before.

I could observe that my ability to understand the core of some of the contractual issues has been tremendously improved and I feel myself proud and courage to face many interesting issues in the future ( in my career as a QS).

Thank you so much again for the continued support.

With Best Regards

Arunachalam

Quantity Surveyor

DE LEEUW MIDDLE EAST

DUBAI

Dear Mr. Arunachalam,

Many thanks.


Dear Professor Sam On behalf of Proscape team which participated in the Class of Spring 2008, I like to thank you for clarifying so many contractual issues which we are facing now a days , while executing the contract.We have much clarity in our obligations, rights and liabilities, better than before. Thank you.

Regards,

Ram Kumar

General Manager

Dear Mr. Ram Kumar,

You are welcome.


Sp08-Q&A-2

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