My comments are given below in red fonts :----- Original Message ----From: mohammad Asghar

To: "Prof. Sam" <sam99@eim.ae>

Date: Wed, 21 Apr 2010 08:41:11 +0400
Subject: Advise_Q N A

Prof (Dr) Sam,

I was your student of January batch of 2010 SCA. Let me thank you for your support and
inspiration throughout our association with you.
Your classes evaporated my doubts and confusion leaving behind only facts----a crisp and clear
knowledge. This process inspired me to think analytically and logically. With in this context, I have
two questions for you;
a)

Does an employer has right to see or demand for Local Order Purchase (LPOs) from
the Contractor under FIDIC Conditions of Contract. Under FIDIC 4th Edition, it is not the
Employer but the Engineer who deals with such matters. The burden of proof is on the
claimant (in this instance the contractor), and therefore, if facts have to be proved in
relation to timely placement of orders and/or if quantum needs to be proved in support of
any claims of the contractor, then copies of LPOs may have to be shown to the Engineer
as such proof. In an arbitration or litigation, however, the Employer has the right to see
them, if he can convince the Tribunal/Court of its necessity.

b) Suppose a Contract has been signed for 12 months duration of completion time. Master
Program, showing start and completion time of project and its major activities (milestone
dates), has been attached with the Contract Documents and signed by both parties. In
this scenario, can Contractor deviate from Completion date (from Contract program)?
Contractor cannot deviate. Or can the Employer change the dates of Master Program to
suite his requirements without consent of the Contractor? Employer can change (but it is
the Engineer who should instruct such change), provided that the Contractor is
compensated in respect of any time/cost implications of such changes.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thanks in advance for your cooperation and valuable suggestion.

Regards
Asghar
----- Original Message ----From: Rajendiran Adikesavan
To: sam99@eim.ae

Date: Wed, 14 Apr 2010 12:40:00 +0000 (GMT)

Subject: Advice on Partnering Contracts -reg.
Dear Sir,
I am one of the Alumni member and studying MSc in Surveying and for the purpose of Dissertation, I would
like to take your advice.
I had selected my Dissertation topic as "Partnering" in Dubai Ports Authority construction projects. For
discussion and critical review, do I have to refer NEC3 or PPC2000 in my Dissertation. Please advice.
Reference to any partnering Standard Form of Contract would add value to your dissertation.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Regards,
A. Rajendiran.
SQS
Dubai World
----- Original Message ----From: ahmed dajani
To: sam99@eim.ae
Date: Tue, 13 Apr 2010 04:37:52 -0700 (PDT)
Subject: Re: One more Advanced Class this year ?
Dear Dr. Sam
Can you Pls. comment on preparation of progress monthly report as per clause 4.21 , should it be a
cumulative progress report or only per month progress.
There are many weaknesses, errors and ambiguities in FIDIC 1999. The Contract Administration - Advanced
Course (CA-AC) is structured to educate the Contract Administrator on them and on how to protect the
interests of their companies despite those shortcomings. The last CA-AC for 2010 is on April 30th
& May 7th.
The ambiguous wording in Sub-Clause 4.21 could be construed to require the cumulative progress to be
described in each monthly report, but the proper construction of this ambiguity (by courts) would no doubt
take into consideration the lack of necessity and also the waste of resources, to repeat what has already
been described in previous reports and therefore, would require only the progress during the month to be
described. However there are some parts of the report (such as updated programme etc.) that would always
show the cumulative progress. Lack of reference to a Cash-Flow update is another shortcoming in FIDIC
1999. But most consultants require the Cash-flow to be updated in the Report and if it is being done then
that too would be cumulative.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thx
Ahmed M. Dajani
----- Original Message ----From: Hugh McDaid
To: "Prof. Sam" <sam99@eim.ae>
Date: Tue, 13 Apr 2010 09:03:06 +0400
Subject: FW: An arbitration award ...

Hi Prof. Sam,
In your experience within the region would you concur with the statement below?
An arbitration award requires to be converted into a final judgment in the courts
confirming validity of the original award. This process can sometimes be lengthy and as
a result one of the primary purposes of arbitration swift resolution is defeated by yet
another trial between the same parties. Very rarely are arbitration awards issued within
the six months time limit suggested by DIAC. Usually there are extensions of time
granted or agreed and it may be more than a year before an arbitration award is issued.
Thereafter, the litigation process of validation of the award could result in an additional
years delay before a final judgement is issued. The overall time consumed is arguably
equal to and sometimes and greater than the time spent before the Courts through a
straightforward litigation process.
To some extent, yes. But if experienced/competent arbitrators are selected, then they are
likely to rule correctly on their jurisdiction and thereafter conduct the proceedings and
write the award in a manner that would leave no room whatsoever for a successful
challenge, thus limiting the Court ratification process to a very short period. Of course I
agree with the statement that Very rarely are arbitration awards issued within the six
months time limit suggested by DIAC.
Despite the comparatively longer total process (of arbitral proceedings + ratification of
the award by Court + enforcement), arbitration is still the preferred choice of the
developers and contractors due to the 6 undisputable great advantages discussed during
the 9th session of SCA (see the last slide in the handout).
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thanks & Regards,

Hugh McDaid
Commercial Manager - SubContracts
From: mushtak naik [mailto:mushtak_naik@hotmail.com]
Sent: Saturday, April 10, 2010 7:17 PM
To: sam99@eim.ae
Subject: Questions
Dear Sir,
I am your student and have attended some of your seminars on CA.Presently I
am preparing for APC.
Please comment on the following:

1) Nominated Sub-contractors: What is the process involved in termination

of nominated subcontractors? Same process as termination of any other
Subcontractor (however the FIDIC termination provisions conflict with the UAE law
and therefore extreme caution should be exercised we deal with this in detail
during CA-AC) Should the client be informed? No, but the Engineer should be
informed for the sake of good order. Should the client be informed about the poor
performance of the nominated SC? No, but the Engineer should be informed for the
sake of good order. how the client is accountable for the delay and poor performance
of the nominated sc? The Client is not accountable. The Contractor is responsible for
the delays and poor performance of the Nominated Subcontractors.

2) Can you briefly describe the following Impact analysis

techniques? This is beyond the scope of this short Q&A forum. Even brief descriptions
could run into several pages. Delay impact analyses are a field of expertise. Try to talk to your
company planner who may be able to better explain these and probably show you practical
illustrations.

a) As built as planned
b) as built as collapsed
c) time slice method
d) window analysis

3) Vesting certificates: I understand that vesting certificates ensure

that the material becomes the property of the employer once it is paid for.
But actually who gives the vesting certificate to whom? Generally Employers
include a provision in FIDIC Forms of contract through Part II Conditions of
Particular Application, requiring the property of equipment / material brought
to site, to vest in the Employer (even before payment is made). If the
Employer pays for any material off site, the vesting of property of such
material in the Employer, is not covered by the above provision, and therefore
the Contractor is often requested to provide a Vesting Certificate to the

Employer before payments are made for off site material.

4) Can you briefly tell me what to say about Change

Control Procedures in terms of level of authority? According
to FIDIC 4th Edition, the Engineer has the authority to instruct changes which
are necessary or appropriate. Where there is a Project Management
Consultant involved, there are specific clauses / procedures written into a
contract regarding the authority to change and the procedure to be followed.
They vary from contract to contract. Refer to FIDIC 1999, Sub-Clause 13.3 for
variation procedure specific to that contract. (There are many shortcomings in
that which we discuss in detail during CA-AC)

Subrogation : It is the right to sue in the name of the

assured to sue any person who can be sued by the
assured in respect of loss and damage...is this definition
correct? Yes, in relation to insurance matters. Regarding the common law
concepts of subrogation and the subrogor / subrogee relationships, we will discuss
during the Master Class.
5)

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Please give some advise on these issues....

Regards
Mushtak Naik

----- Original Message ----From: Karthick Subramani

To: sam99@eim.ae, sam99@emirates.net.ae
Date: Tue, 06 Apr 2010 08:20:59 +0400
Subject: Q&A

Dear Sir,
First of all thanks for your continue support for CPD.
What is DIRECT COST and INDIRECT COST in the Contract, please advise.

There are no definitions given in FIDIC 4th Edition. Generally, (for example) direct cost
of any instructed additional work includes the cost of carrying out that additional work;
and its indirect cost includes prolongation costs resulting from a delay to the project
completion due to such additional work.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Karthick Subramani
Contract Administrator
From: Saif Bin Darwish Contracts [mailto:sbdcontracts@dbasons.com]
Sent: Thursday, March 18, 2010 10:13 AM
To: 'sam99@eim.ae'
Subject: Expert Advice
Dear Prof. Sam,
As a query, I mentioned during the session on 04 March 2010 in Abu Dhabi, whether work foreseen on a
Provisional Item shall be shown in the base line programme. You answered yes. If so, where in the
schedule this work, which would be (would not be) instructed during the course of the Contract should be
placed? I believe, neither the Engineer nor the Contractor will be able to position the bar in the schedule at
the commencement. How the Contractor shall approach with the point? Please clarify.
The early/late finish dates of the bar should be such that, the other activities of the Contractor are not
adversely affected and the project can still be completed by the due date. Due to the bar being placed too
early in the programme, if any float exists, the Employer would have the benefit of that in the event of a late
instruction/nomination (unless already consumed by the contractor due to his culpable delay).

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Best regards,
Joseph Ubald C. Eng.

SAIF BIN DARWISH

From: Disney Patterson [mailto:Disney.Patterson@curriebrown.com]

Sent: Tuesday, March 23, 2010 2:03 PM
To: sam99@eim.ae
Subject: Taking Over Certificate for part of the Works
Dear Professor,
I've query regarding Taking Over of Part of the Works;
Let's say there is an element of the building that can be separated as an entity. This
entity comprises of the following;
1. Steel structure
2. Glazing
3. Lighting
The steel structure and glazing are complete and lighting is not. The Contractor is
requesting a TOC for the Steel structure and glazing. Can this be done under the
FIDIC 1987 provisions? If the property cannot be put into its intended beneficial use
(say due to absence of lighting), then substantial completion has not been achieved
and therefore the Contractor does not have an entitlement to apply for a Taking-Over
Certificate. If however the lighting installations are complete but cannot be tested
and commissioned due to Employers failure to procure power supply, then it would
be less costly to issue the ToC (and allow the testing/commissioning during DLP)
rather than paying prolongation costs.
Taking-over of parts (complete or incomplete) is at Engineers (Employers) discretion
and not at Contractors, unless already occupied by the Employer.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thank you.
Kind regards,
Disney
Disney Patterson
Cost Manager
----- Original Message ----From: William.Augustt@wadeadams.com
To: sam99@eim.ae

Date: Thu, 18 Mar 2010 14:34:43 +0400

Subject: Re: Q&A

Prof Sam
I will be very grateful if you can comment on an issue I am currently
facing in work.
We have a design and build contract (Fidic 2006 MDB Harmonised
Edition). We have submitted a programme indicating that the 33kv
substaions will be complete on the 21st March 2011(key
milestone).There are no sectional completion provisions in the
contract. Do we have to handover the 33kv substations on the 21st
March 2011 or our obligation is to complete all the works on date of
completion (21 May 2012). If the programme is not part of the contract
documents (i.e. it is not expressly stated as a contract document at the time of
entering into contract), then the project has only one completion date which is
21/3/2012. There is no necessity to complete the substations earlier unless of
course the Employer can show:1. That he relied on your programme and made other arrangements to use
power from the substations, or
2. That the completion of the substations early is mandatory for the Employer
to use their availability to procure power supply from the authorities, thus
avoiding the long delays usually experienced in procuring power
nowadays, or
3. etc.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

William C Augustt
Snr Quantity Surveyor
Hilalco WLL
AWPR - Sitewide Infrastructure

----- Original Message ----From: Saif Bin Darwish Contracts

To: sam99@eim.ae
Date: Tue, 16 Mar 2010 17:06:19 +0400
Subject: Clarification

Dear Dr. Sam,

I have the following points for your kind clarification.
1.

Time limit to the issue of Variation Orders

During the training session on 05 March 2010 in Abu Dhabi you have mentioned that the Engineer can
issue Variations upto the end of DLP. This is not clear form the 4 th Edition of FIDIC, whereas in clause 13.1
of FIDIC 1999 it clearly depicts that Variations may be initiated by the Engineer at any time prior to issuing
TOC.
(a). Will such an indefinite period be misused by the Employer/Engineer to issue Variations to the
Contractor on the completed works on the pretext that these variations are necessary and
appropriate to complete the Project? There should not be a time limit. I believe the intent is up to
TOC. In FIDIC 4th Edition, from Sub-Clauses 49.2 and 49.3 it is very clear that variations of the
kind stated in 49.2 (b) can be instructed during the DLP + 14 days. No professional Engineer (with
his duty of care to the parties), would even think of misusing his authority to instruct anything
beyond this scope.
The provision you are referring to in FIDIC 1999 has a big shortcoming and it also contradicts with
other provisions in the contract. We would discuss in detail during CA-AC (Last CA-AC class for
2010 starts on April 30th).
(b). In a Contract, it was found that the Employer/Engineer during the 1st visit of Joint inspection after
the request of Contractor to Take-over of the works, a punch list was issued which the committee
comprising the two Parties plus the Engineer have concurred to be completed within one month.
For the second inspection after one month, in the absence of the Contractor, a second punch list
was generated as defective works by the Employer and Engineer. A third inspection thereafter in
absentia, also showed a list of new defects. As the Contractor could not finish those works in all the
punch lists in the first month, the Completion Certificate was issued later when the defective
works in the second and third lists were completed ie about 10 months later than the first date of
inspection whereas the first punch list was finished within the first month.
What the Contractor is supposed to do in these circumstances? Is it right to delay the Completion
Certificate by 10 months as the Contractor could not complete the remaining alleged defects notified in the
subsequent lists? To my concept, Completion Certificate shall be issued after the one month and rest shall
be covered with the DLP? Am I right? The answer is yes, if the works could have been put to its intended
beneficial use whilst the remaining defects could have been rectified during DLP.
2.

Time at Large

This matter was raised by me during the session on 05 March 2010 in Abu Dhabi and I mentioned that the
term cannot be used in the UAE as the JCT form of Contract is not prevailing here. To the FIDIC 1987 and
1999, also I think application 8 of this term is inappropriate. An extract from a periodical issue from Hill is
pasted here for your kind reference.
You hear the cries of time of large from those who have experience of working in certain common
law jurisdiction. For those who are not familiar with this principle, time is said to have become at large
when the obligation to complete the specified time for completion is lost; that obligation then becomes
to complete within a reasonable time. However, the law in the UAE is entirely different and this principle
is unlikely to have any application.
(a). In view of the above, please clarify that the term time at large is applicable to FIDIC 87 and 99,
although frequent quote by people. Time-at-large argument is often brought up to support claims under the
contract. No one can prevent such arguments being raised at arbitrations and litigations. UAE courts are
said to have jurisdiction to extend time where provision does not exist under the contract to extend time.
Therefore, it does not matter whether or not such extension is made based on the time-at-large concept. In

the absence of any other arguments one may have to therefore resort to the internationally recognized timeat-large concept to persuade the local courts to use their discretion to extend time.
(b). Can the Contractor consider that the project shall be completed within a reasonable time? Yes, if the
time is at-large.
(c). Will it be acceptable to the Employer? Employer has no choice, because he (or his consultants) did not
write adequate provisions in the contract to extend time.
(d). What is the so called reasonable time? The shortest possible time within which it is physically possible
for a diligent contractor to complete. If the Employer/Engineer and the Contractor differ on their opinions as
to what that reasonable time is, then the arbitrator / court would rule what the reasonable time is.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Best regards,
Joseph Ubald C. Eng.
SAIF BIN DARWISH
----- Original Message ----From: Disney Patterson
To: sam99@eim.ae
Date: Thu, 18 Mar 2010 08:56:56 +0400
Subject: Consequential damages to property
Dear Professor,
First and foremost I wish to express my utmost gratitude for the very insightful and eye-opening training
programme.
I've a scenario:
A hotel has two towers. One of the towers has been put into beneficial use by the Operator already despite
the absence of a TOC. While the tower was in use, due to a water ingress during the recent heavy rains
experienced, some expensive plant were damaged. Now a substantial amount of money has to be spent on
replacement of plant. The dominant cause of the water ingress has not been determined yet. There are
three parties involved in the argument;
1. Operator
2. Developer - the Employer
3. Contractor
Is there any remedy available for the Employer under the provisions of FIDIC 1999? Once the root cause is
established, if it is found to be due to an insured risk then the claim is under the Insurance Policy. See
Clauses 17 & 18. If not, then the party responsible for it would have the liability to rectify/replace. See
Clause 7 and 11.

The relevant tower is deemed to have been Taken-Over on the day the Employer/Operator had its beneficial
use.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thank you.
Kind regards,
Disney

Disney Patterson
Cost Manager

From: Paul Varghese Kuttikat [mailto:paul.varghese@dbasons.com]

Sent: Saturday, March 13, 2010 9:47 AM
To: 'Prof. Sam'
Subject: RE: Dear Class of March 2010
Thank you Dr. Sam. Your training programme was really worthy. It provided me a new outlook in
approaching FIDIC. Once again thank you very much. Thank you for your kind words. If you wish
to continue on the same path to become a Master Class Contract Administrator, the next step is
CA-AC of which the last class in 2010 is on April 30th & May 7th. Master Class would be towards
the end of the year.
Best regards

Paul Varghese Kuttikat

Legal Advisor

SAIF BIN DARWISH