You are on page 1of 6

My comments are given in red below,

From: Gudmi Mohammed Sadik [mailto:Gudme.Sadik@nakheel.com]


Sent: Thursday, March 27, 2008 8:57 AM
To: Prof. Sam
Subject: RE: Jan08-Q&A-6

Dear Doc,
We have a D&B Contract with some PC items. Now we have nominated
the supplier for these PC items. For the adjustment of contract sum
accordingly I am facing following problem. There appears to be a big
flaw in the procurement route. In Design & Build Contracts, the
Employer does not provide a BOQ. Assuming that the D&B Contractor
produced the BOQ, the following comments are made.
The B.O.Q Qty is more than actual quantity based on contract drawing.
For eg. We have ceramic tiles with 124 sqm with the rate of 95 Dhs
while the actual quantity as per contract drawing comes with 83 sqm
with new rate of 87.2 Dhs based on suppliers rate. Please advice while
reconciliating the contract price I should omit the 124 sqm with 95 Dhs
or 83 sqm with 95 Dhs. To get the adjusted contract sum. ( please note
that there is no adjustment item nor p>S in the B.O.Q)
Omit 83 x 95 and add 83 x 87.2 and also adjust the Overheads and
profit accordingly. (This is the way PC rate adjustment is made under
Lump Sum Contracts. For Re-measure contracts 124 x 95 should be
omitted and 83 x 87.2 should be added and OH&P adjusted
accordingly, but since D&B contracts are generally not re-measure
type, this method is not applicable)
Regards,

Prof. Sam.
Prof. 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

Thanks and Regards


Mohd. Sadik. G
----- Original Message ----From: Faisal Khan
To: sam99@emirates.net.ae
Date: Thu, 27 Mar 2008 11:23:18 +0400
Subject: [No Subject]

Respected Sir,
I have the following query regarding Clause 52.3 :
In FIDIC 1987, the manner in which Clause 52.3 is written is ambiguous. I do not agree. True that it is
difficult to understand but it is not ambiguous. The Sub-Clause was explained in detail during the course.
There is lot of incorrect applications of this Sub-Clause in this part of the world because almost all (other
than trained) Contract Administrators are ignorant about its correct application). In our Contract, work has
been deleted by an amount such that it exceeds the 15% mentioned in this Clause. Due to the above, the
Contractor has claimed for overheads which far exceed the allowable overheads (16.7%) (which have to be
added to the Effective Contract Price) for our project. Now, it is required by myself to write a letter back to
the Contractor confuting his claim quoting Clause 52.3. As per normal procedure, the above letter is to be
signed by the Resident Engineer but I found it very difficult to explain the operation of the Clause 52.3 and at
the end he was not convinced due to the ambiguity of the wording of this Clause. My question is that is there
any other certified / recognised book which substantiates FIDIC 1987 and explains clearly this Clause? I am
afraid there are no books written on this subject. If not, then can you advise on how I should convince my
R.E. regarding the operation of this Clause? You can suggest him to attend the next CA training programme
starting on 20th April where he would gain full knowledge on the correct application of Sub-Clause 52.3. This
is why I have previously circulated the following email among the Alumni in order to make their lives easier.
Regards,

Prof. Sam.
Prof. 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

An early reply would be appreciated.


Regards,
Mohammed Faisal Khan
Quantity Surveyor
Wilbur Smith Associates
Batch of Spring 2007

Dear Alumni of Sound Contract Administration Training Course,


Thank you for your support in the past in recommending the course to your colleagues.
I have no doubt that you (and especially your company) may have benefited from the knowledge you gained from the
"Sound Contract Administration" training course and its regular updates (based on queries received) being emailed to
you from time to time. Just imagine, to what extent life would be easier, if you could communicate in the same wave
length with your counterparts, subordinates and colleagues, when dealing with contract administration matters,
without having to elaborate at great length, a point that you wish to make ! However, this is possible, only if they
too are knowledgeable to an equal level as you are.
Few places are still available in the Class of Spring 2008 which starts on 20th April 2008. Course details are attached.
I shall be grateful if you could pass this to anyone who could benefit from this training.
Regards,

Prof. Sam.
Prof. 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: ShibuKJohn@wadeadams.com [mailto:ShibuKJohn@wadeadams.com]


Sent: 31 March 2008 15:10
To: Prof. Sam
Subject: question
Dear Dr.sam

I would request you to advice me on following situation:


Question 1.
The contractor has a valid claim for extension of time and additional cost due to
additional works instructed by the engineer in one of our RTA contract. The client has
agreed in principle for the extension of time and cost, but nothing in writing. Since the
engineer cannot monitor the progress based on the approved clause 14 programme, he
keeps on requesting for a revised programme incorporating all the additional works.
Is it advisable to submit a revised programme before finalising the claims? It is the
Contractors obligation to submit a revised programme if the work is not proceeding
according to the original programme. However the Finish Date in the revised programme
need not be the original date for completion. It should be the date, which in the
Contractors opinion that he is fairly entitled to complete the Works.
Question 2.

If the consultant did not provide the detailed specification of irrigation works for tender
and as an experienced contractor we priced it You should also have stated in the Tender,
your assumptions regarding the specification that you priced. If you did not do this, then
you will have a difficulty to refuse to provide the standard of material and workmanship
that the Engineer may subsequently specify. But during execution stage we are in need
of it for the material submittals and other references, can i ask for it officially ? I suggest
that you first submit your material samples for approval, according to your Tender
assumptions, and see whether they would be approved by the Engineer.
How can i defend myself if any variation arises due to the new specification ? Since your
Tender assumptions should have been for material generally suitable for the intended
work, if the Engineer/Employer now requests for material of a higher standard, you
should try to argue that such high standard could not be inferred from the tender
documents and therefore it constitutes a variation.
Regards,

Prof. Sam.
Prof. 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
-----Original Message----From: sini noushad [mailto:sini2050@hotmail.com]
Sent: 02 April 2008 17:05
To: Prof. Sam
Subject: More Q&A

Sir,
Is the Engineer can issue the Letter of intent to the Nominated sub contractor if
employer delays the same?. The Sub contract would be between the Contractor and
the Nominated Subcontractor and therefore the LOI or the LOA should be issued by
the Contractor to the Subcontractor, after the Contractor has been informed by the
Engineer of the nomination. The Engineer can issue only a letter to the Nominated
Subcontractor informing him that his bid documents have been forwarded to the
Contractor for them to enter into a Subcontract. (However, if according to the
consultancy agreement between the Employer and the Engineer, if Engineer is
required to obtain Employers approval before making a nomination, then the
Engineer should neither write to the Contractor nor to the Subcontractor until such
approval is in place.)
Also what is the difference of letter of intent and letter of acceptance? On the issue of
a Letter of Acceptance, the contract is formed. On the issue of a Letter of Intent, the

contract is not formed and therefore, the Contractor should proceed only with what
has been stated in the LOI and if the Contract is not subsequently signed, then the
parties are not bound by the provisions in the Tender, and the payment would be on a
quantum meruit basis.
Regards,

Prof. Sam.
Prof. 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

Thanks and regards


sini
-----Original Message ----From: Hani Ahmad Khalili [mailto:hani.khalili@rta.ae]
Sent: 03 April 2008 09:39
To: Prof. Sam
Cc: Musa Khalil Abul Haj
Subject: clarification

Dear Sir,
We were discussing as engineers in RTA during rest time lot of
contractual issues. The following questions were raised but dispute
took place due to different opinions.
Can you please clarify?

Q1. Is the Client thru Engineer able to instruct VO (additional works) to


the Contractor after the engineer sent a letter to the Client inform him
that the work is substantially completed subject to completion of some
works?
Case A: Parts of the additional works are within current contract
limits and lays within parts of the permanent works used by client.
Case B: parts of works completed but not inspected by client only
consultant send a letter that main works completed and contractor

submit under taken to complete remaining works during defect liability


period
Case C: Parts of the additional works are out current contract limits
The answer to all three cases is that the Engineer cannot instruct
additional work unless such additional work is necessary to complete
the original scope of work. If it is necessary, then it can be instructed
but the Contractor should be properly compensated in each of the
above cases (as he would have valid claims for working outside the site
limits, working after completion of the Works etc.)
(Assume that contractor was delayed completion project on
time). This should be assessed separately in respect of EOT/Penalties
depending on the circumstances.

What do you recommend for Mechanical Engineer to attend


in order to practice and be sound contract administrator?
Whether the scope of work is Mechanical or Civil, if the Engineer is required to
administrate the contract properly, (in addition to his knowledge in Mechanical
Engineering), he must gain knowledge/experience/training in all subjects that you
were trained in at the Sound Contract Administration training course, i.e.
Dealing with Variations, EOT/Cost issues, Notice requirements, how to interpret
the key contract provisions, drafting contracts/subcontracts, dispute resolution,
procurement methods, ethics, existing incorrect practices in contract
administration, the correct practice etc. (except perhaps the CESMM3 session).
Regards,

Prof. Sam.
Prof. 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

Hani Ahmad Khalili


Senior Engineer