1. Prince Samuel asks Prof. Sam for guidance on claiming a variation in a lump sum contract where the bill of quantities (BOQ) specifies 25 sqm of paint finish but the actual work required is 300 sqm of tile finish.
2. Prof. Sam responds that the correct approach is to omit the 300 sqm of paint finish in the BOQ and add 300 sqm of tile finish, as this reflects the actual work required per the drawings, not the BOQ quantities.
3. Sarath Kumar asks Prof. Sam about entitlement to payment for delay caused by the employer, delay caused by nominated subcontractors or client-supplied items, and the ability to claim increased material and labour costs
1. Prince Samuel asks Prof. Sam for guidance on claiming a variation in a lump sum contract where the bill of quantities (BOQ) specifies 25 sqm of paint finish but the actual work required is 300 sqm of tile finish.
2. Prof. Sam responds that the correct approach is to omit the 300 sqm of paint finish in the BOQ and add 300 sqm of tile finish, as this reflects the actual work required per the drawings, not the BOQ quantities.
3. Sarath Kumar asks Prof. Sam about entitlement to payment for delay caused by the employer, delay caused by nominated subcontractors or client-supplied items, and the ability to claim increased material and labour costs
1. Prince Samuel asks Prof. Sam for guidance on claiming a variation in a lump sum contract where the bill of quantities (BOQ) specifies 25 sqm of paint finish but the actual work required is 300 sqm of tile finish.
2. Prof. Sam responds that the correct approach is to omit the 300 sqm of paint finish in the BOQ and add 300 sqm of tile finish, as this reflects the actual work required per the drawings, not the BOQ quantities.
3. Sarath Kumar asks Prof. Sam about entitlement to payment for delay caused by the employer, delay caused by nominated subcontractors or client-supplied items, and the ability to claim increased material and labour costs
1. Prince Samuel asks Prof. Sam for guidance on claiming a variation in a lump sum contract where the bill of quantities (BOQ) specifies 25 sqm of paint finish but the actual work required is 300 sqm of tile finish.
2. Prof. Sam responds that the correct approach is to omit the 300 sqm of paint finish in the BOQ and add 300 sqm of tile finish, as this reflects the actual work required per the drawings, not the BOQ quantities.
3. Sarath Kumar asks Prof. Sam about entitlement to payment for delay caused by the employer, delay caused by nominated subcontractors or client-supplied items, and the ability to claim increased material and labour costs
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Please see my comments in red below:----- Original Message ----From: Prince Samuel
To: "'Prof. Sam'" <sam99@eim.ae>
Date: Wed, 04 Jul 2012 14:37:36 +0400 Subject: RE: Latest Q&A Dear Dr. Sam, I wish to seek your valuable comments for a particular situation, which could set a costly precedent if not resolved immediately. Presently I am working on a project under the Lump sum contract. Please provide some guidance in purpose of the BOQ Quantities in the lump sum contract in respect to the following scenario. BOQ Quantities are not to be used for any purpose whatsoever in a Lump Sum contract. We have in the BOQ 25 sqm of paint finish at a rate of Dhs. 18/- per sqm in a particular area. The specs got changed from paint finish to a tile finish at the rate of Dhs. 250/- per sqm. The actual qty at site as per tender drawings is around 300 sqm and not 25 sqm as indicated in the BOQ. When we are claiming the variation for the change in specs (No change in room layout), please advise which of the following will be correct. 1.
To omit 300 sqm of paint finish and add 300 sqm of tile finish as per drawings. This is correct.
2.
To omit 25 sqm of paint finish and add 25 sqm of tile finish as per BOQ. (But need to complete 300 sqm at site as per drawings.) Wrong.
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
Looking forward to hear from you.
Thanks a lot for your valuable time and guidance. Regards, Prince Samuel
----- Original Message ----From: Sarath Kumar
To: sam99@eim.ae Date: Wed, 27 Jun 2012 22:55:04 +0400 Subject: RE: Queries
Dear Sir, Thank you for your continued support and your recent Advanced Course was great and helpful in understanding the implications of Special Risks. I have few queries. 1).Under Fidic 87, a). Delay due to Employer ( 44.1d), Under which clause a Contractor is entitled payment ? The entitlement is not under the contract but in law as damages for breach of contract (but can be claimed under Sub-Clause 53.1 or otherwise provision) as discussed during Session 2 of SCA. b). Delay due to nominated subcontractor and client supplied items, can be put under this clause or which clause ? Yes. c). Also, delay due to other contractor ( Clause 31.1), can it be claimed under 44.1d ? Yes. 2). It is a fixed lump sum contract. There was delay due to Employer cause up to 10 months and EOT was granted. Under a claim by contractor, can the Engineer certify for increase in material and labour price occurred after the original completion time. Yes, but the Employer would try to argue that rates/prices should be fixed for the whole period that the Contractor is working on Site if ambiguous wording like Contract Period was used in the documents. For this reason, at the time of tendering, tenderers should ask for a definition if ambiguous wording like Contract Period is stated (for fixed price requirement), and price the risk of fluctuations accordingly. 3). Another query I have about tender price correction in an open tender. Is it right to correct ( increase or decrease) a tender amount and accept a revised sum other than the sum shown in the Form of Tender. Can be done only with the agreement of the Tenderer. Revised tender amount would become part of a counter offer by the Employer which could be accepted by the Tenderer to form the Contract. Can other tenderers approach court in that case. For example, say second lowest tenderer becomes lowest after rectifying an arithmetical error and Employer accept the same and award. Can the others allege lack of transparency in the contract award. No, because in almost all tenders, the documents state that the Employer is at liberty to accept or not accept any Tender, and also that the Tenderers should bear
their own costs of Tender prepeartion. (Therefore there is nothing that
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
Yours sincerely., Sarath ----- Original Message ----From: Vijay Singh To: sam99@eim.ae Date: Mon, 09 Jul 2012 03:03:30 -0700 (PDT) Subject: Re: RE: MSc from BUiD.... Dear Sir, can I know something about this course (Masters Degree in Construction Law & Dispute Resolution) as per given below in order to prepare myself : 1) How much fees to be paid after full scholarship dhs 28,400.00, (Balance is AED 55,600/-) 2) is it possible to pay fees in installaments of monthly/quarterly, (Yes, but you have to discuss with Uni) 3) Duration of course (2 years - there is possibility of shortening the period discuss with Uni) 4) days for attending class weekend or regular days (Friday & Saturday afternoons) 5) Class timing and venue (4.00pm - 9.00pm at International Academic City, Dubai) 6) is there any additional fees for certification (Not that I know of, but check with Uni) (Those who have received the Certificates of SCA and Advanced Class are qualified to receive the above Scholarship. Last Advanced Class for 2012 starts on July 20 th). Vijay
Dear Sir, I'm very thankful to you for your emails for Q & A. I've got query regarding the glass works. Kindly suggest if measurement of any glass partition should include the measures for framing works. Suppose, there is a partition and drawings reflects the height of 2100mm between finished floor level and False ceiling. To fix the glass partition, we need to cut glass of bigger size say 2200mm high. Kindly suggest, if we can use the height of 2200mm for re-measures of glass work, But I think that consideration of glass height 2200mm is not right as extra hight of 100mm must include in the wastage. I've gone through the POMI, but I can't find it. Generally measurements for quantities of work have to be the nett measurement of the finished product and therefore in this case, the 100 mm section should not be in the measured quantity, but is deemed to have been allowed within the rate/price as wastage.
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
Kindly suggest accordingly.
Best Regards, Satvir Singh Quantity Surveyor
----- Original Message ----From: muntaha ali
To: "sam99@eim.ae" <sam99@eim.ae> Date: Thu, 31 May 2012 05:39:17 +0000 Subject: RE: Your request for an Advanced Class in Dubai
Dear Dr Sam Please can you comment on this variation.
The history of the variation is that in our contract which is Lump sum contract, the structured cabling system was priced as version 2 but the client needs to upgrade to version 4. The cable was cat 6 now its optical fiber cable and no ACP is required in version 4 but there are 3 items required ( cable manager, RJ45 & 24 patch panel ) these will be used in ACP panels but nothing mentioned in the BOQ. According to our evaluation we make breakdown of the cable (CAT 6 cable )including the above three items and we are deleting the cables only & add the optical fibre. The client point of view is to deleted the all amount of the cable which is a big amount & the above three items shall be consider under panels(small amount). The variation is still under dispute. Our reply to the client was that since the contract is lump sum I can break up my system as I want since nothing mentioned in BOQ regarding the above items. Details are insufficient (and more details cannot be permitted in this short Q&A forum) but see whether the following is helpful:Two sets of prices should be prepared reflecting current market prices as follows:Set 1 One price for CAT 6 Cable Set 2 Four separate prices for:-
Cable Manager RJ45 24 patch panel Other work of ACP Panel
The total of Sets 1 and 2 should be equal to the total of all items in the BOQ representing this work (though some of it may not be specifically identified so in the BOQ). Using Set 1, calculate the price difference between CAT 6 Cable and optical fibre cable, and adjust the Lump Sum contract price by that difference. Using Set 2, identify the price of Other work of ACP Panel and deduct it from the Lump Sum contract price.
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
From: ahmed negm [mailto:anegm_2000@hotmail.com]
Sent: Wednesday, May 09, 2012 2:28 PM To: Prof. Sam Subject: Q & A
Dear Prof Sam ,
I am working as senior quantity surveyor with Project Management Company in Egypt. Please we need comments for the following: 1. Our Contract with Main Contractor is Lump Sum Contract and Conditions prepared is based on FIDIC 99 as referred in the above subject. 2. There is variation instructed by Engineer to delete the existing items in the contract drawings and replace with new items which is approved by Client. contractors were instructed to submit the associated cost due to this modification. 3. In this case Consultant and Contractor has proposed TWO principles to apply into this variation
Option 1 ( By Consultant) 1. Remeasured the quantity from contract drawings applies the quantity with rates in the Boq for deletion and applies rate proposed by contractor to the new item.
Option 2 (BY Contractor)
Delete the amount in the BOQ for this item and for additional item remeasured the quantity and apply new rates as per quotation and submitted.
Which is applicable in the scenario
Regarding the calculation of the Quantity, Option 1 is correct. However, before applying the new rate proposed by the Contractor, it should be investigated pursuant to Sub-Clause 12.3 whether new rate could be derived from the existing rates as we discuss during the 5 th Session of the Advanced Class. Application of Sub-Clauses 12.3 and 12.4 are extremely complex under FIDIC 1999 and therefore we discuss them with worked examples during the Advanced Class. (Last advanced class for 2012 starts on July 20th).
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
Sr. Quantity surveyor
Ahmed negm From: Pradeep Perera [mailto:pradeepkperera@gmail.com] Sent: Wednesday, May 16, 2012 11:04 AM
To: sam99@eim.ae Cc: Dr. Sam Subject: PC Rates
Dear Prof. Sam,
Thank you very much for sending Q & A. I would like to seek your comments about PC rates. Attached below is a PC rate item for Ceramic skirting and the Employer wants to change it to Granite. 1. Since the labour required for Granite is considerably higher than for Ceramic, is the Contractor allowed to change the Fixed Rate component of PC rate to recover additional labour cost ? Yes. A PC rate allows the Employer to procure a material somewhat similar in specification to that stipulated in the Item Description, from different sources at different prices. It should not be misused to change the specification to such an extent to vary the installation costs significantly. 2. If not, what is the applicable methodology for Contractor to recover his additional costs? N/A. Regards,
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 very much.
Regards, Pradeep perera ----- Original Message ----From: Alex Casicas To: "sam99@eim.ae" <sam99@eim.ae> Date: Wed, 30 May 2012 09:13:20 +0000 Subject: RE: Your request for an Advanced Class in Dubai
Dear Sir,
I have one query regarding define terms in GCOCs. Are there any legal reasons why define terms need to be capitalized? If none was it only applied to make some distinctions?
Many English words such as contract, engineer, employer etc. could have more than one meaning in the construction industry, and therefore the defined meaning for a specific purpose should identify not only the word itself but also the way that word is written in a specific manner. For this purpose the starting letter is usually from upper-case.
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, Alex U. Casicas Contract Engineer From: antonycruz prabhu [mailto:rajprabhu1976@hotmail.com] Sent: Sunday, April 15, 2012 10:22 AM To: sam99@eim.ae Subject: Issue in site Dear sir CA-AC I have an small issue in my site. Our contract says only 75% of rebar should be certified in Payment certificate and our minimum payment for the contractor should be 15 million. Due to this the contractor to bring his payment application 15 million he is adding a huge amount for material on site (delivery notes attached) crosspondingly the progress of work is less. If this is the situation how we can stop the contractor from claiming a huge amount on material on site. Many projects suffer due to Contractors failure to procure material in a timely manner. Contractors should be encouraged to provide materials in advance ! Unless the contract specifically states that material should not be prematurely brought on site or the monthly payment application exceeds any pre-agreed cash-flow forecast or there are logistic restrictions stipulated in the contract such as just-in-time off-loading at Site etc., one cannot prevent a Contractor bringing on Site any material as and when the Contractor prefers.
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 prabhu From: Jaseer [mailto:Jaseer@gecome.com] Sent: Sunday, May 06, 2012 6:35 PM To: sam99@eim.ae Subject: Query Dear Prof. Sam Good Day to you. I am a member of your SCA and CA-AC Alumni, done your training in 2010 and 2011 respectively. I take this opportunity to convey you my sincere thanks for sharing your valuable time to respond to our queries. I would be really thankful if you could provide your comments on the following: Our company doing the MEP sub-contract works and recently we completed one project in Al Ain. It is mentioned in the Contract the defect liability period is of 3 Years. In addition in the B.O.Q it is mentioned that the maintenance for the guarantee period need to be done. (Since the guarantee period is of the same meaning of defect liability period, I believe we can assume this period is of 3 years) Now the Main contractor is instructing to do the complete maintenance of the MEP Works for 3 Years without any additional cost. The priority of the document is as follows 1)
Sub- Contact agreement
2)
Specific condition of the contract
3)
Pricing document
Whether we obliged to comply with their requirement? I expect your valuable comments. It is not common for regular MEP maintenance to be continued during the Defects Liability Period. Also the guarantee period cannot be construed as Defects Liability Period. Ideally these ambiguities should have been clarified prior to signing the Subcontract. You should look for a definition in the Subcontract Documents or in the Main Contract Documents for the term Maintenance. In the old FIDIC conditions (3rd Edition and before), Maintenance was used for defect rectification. Therefore in those contracts, Maintenance did not mean PPM or regular filter cleaning, gas filling etc. Possibly what the BOQ meant was to rectify any defects found within a certain period (guarantee period), but if you cannot find a definition for Maintenance as in old FIDIC, then you appear to have the obligation to carry out regular maintenance work.
