NESS

GOD bless you in your succeedings

ICQ:

Plz do not ask for moderator for deleting my threads

Its just my opinion and suggesstion.

You may also write . It is public forum not be made for you only. OK...

If u are in trouble u open your own forum.

It is not understandable that why the peopole not bear any critism only want praising praising and TC of others

Dear Hani

I think you need to be a course in UAE from a good Contract Management Consultant then come to this Forum so that you could be able to solved your problem yourself.

NESS : I think your threads are too long and time consuming with repitition the things but comprehensive to some extent so try to be short , It is not a Lecturer forum/room.

If you want to give detailed answer you should sent in detail on his PM or give the link for reference. Here plz be shorted.

Hope you will understand the situation

Dear Hani,
I can fully sympathise with you since I also had a very similar situation a couple of years ago in Brazil, in which the Employer took back the site six weeks after the Contractor started work, the Contractor de-mobilised, the foundation works were substantially increased and then the Contractor restarted some 3 months later.

Without seeing the specifics of your Contract, I can only comment in general of course, but it is clear to me that you are entitled to a substantial amount of time with costs. Your position depends on whether your Contract Price is on a Lump Sum basis or is remeasurable – I assume that it is an EPC Contract on the basis of LSTK (Lump Sum Turn Key). In effect, what you have is a “Suspension of the Works” – though I doubt if the Client has admitted to calling it this in as many words!

Since only some 10% of the Contract Period elapsed before the Contractor had to demobilise, and since the work that he completed in that time (the excavation work) turned out to be completely abortive, I would argue that the Contractor had no opportunity to make any meaningful start to the execution of the Works in the first place. Consequently, I would argue that the 900 day Contract Period can only start after he has moved back on site – i.e., the clock for the full 900 days starts ticking on day 150. The Client will argue that there could have been some off-site work that could have been done, but this view is counter-argued by the fact that the Contractor could not plan or execute anything efficiently since he probably did not know when he could get back on site!

Because of the excessive disruption at the start of the project, and the changes to the foundations and the addition of an extra floor, (isn’t that a bit worrying – having a heavier building and lighter foundations??), I would also argue that the Contractor is entitled to reschedule the Works and submit a new Baseline Schedule to reflect these fundamental changes. (How many floors were there originally?) The start date of the new Baseline Schedule should be equal to day 150 and the new Schedule should reflect the additional work to the superstructure. Although there may be a reduction in the period for the new excavation work, this may well be nominal since a 10% reduction in foundation work does not necessarily lead to a 10% reduction in time required to carry out the foundations.

If the Client does not accept a new Baseline Schedule, but wants to stick to the original one, then you need to add into your schedule all of the delaying and disruptive events (including leads times!), such as the de- and re-mobilisations, the re-excavation work, the additional geotechnical work, the rework and recycle of your engineering of both the foundations and superstructure and obviously the period in which the Works were suspended from day 90 to day 150.

Re your question about the impact of the additional floor, this is in effect a Change/Variation Order and both the time and cost consequences of the extra floor must be reflected in your Contract Price and Contract Schedule. (I sincerely hope that you haven’t missed the deadline for the period of notice if there is one!). The fact that they are on or off the CP is not an issue. Don’t fall into the trap of thinking that because it is not on the CP (at the moment) that you can complete an extra floor within the original time frame!!

With regard to costs, again I would argue that the Contractor should be paid on a quantum meruit basis for the work already undertaken, including the time related overheads for the first 150 days, and that if it is a LS Contract Price, this should stand, but with increases to reflect inflation over the last 150 days on the new Baseline Schedule. The additional cost of the extra floor and any reduction in cost of the revised foundations (but remember that a reduction in the foundation work will also result in an increase in the cost of the re-engineering work for the new foundations!!) should be taken care of by the Contract’s Change/Variation Order mechanisms.
The Contractor must also be paid the cost of the de- and re-mobilisations. The “Suspension of Works” Clause in your Contract should set out the nature and extent of additional costs that the Contractor can claim.

Hani, I hope that I have thrown some light on your problems, but if you need any clarification, please feel free to contact me direct: stuart@rosmartin.com

Cheers,

Stuart

www.rosmartin.com

I was working on a 300km twin pipelines project, it was a unique case in the sense that the project got approval for the extension of time as well as instructions to accelerate the schedule.

Due to some defaults by others, we got an extension of 9 months on the overall project’s commercial operation milestone. The project was twin pipelines system, the client instructed us to accelerate our activities on one line to complete it nearly 9 month before the revised overall project’s commercial operation milestone.

One pipeline was on extension of time and the other pipeline was on acceleration schedule.

We had to break our heads to launch this claim because direct & indirect cost were having postive and negative affects in both cases.

(Correction)
Hi Stuart,
For the programme being a contract document or not, please refer to the following thread.
http://www.planningplanet.com/forum/forum_post.asp?Cat=7&Top=3128
particularly to David Bordoli’s last post.
I still beleive that the programme is not a contract document unless it is specifically stated so.

As to the case of granting the extension or not, if a Contractor follows your advice to accelerate and claim later, the Contractor will be incurring daily expenses and damages without knowing if he will ever get paid for them, except if he goes to court or arbitration, where he will incur additional costs. This totally unfair.
There should be a mechanism in the contract that forces the Engineer / Employer to releive the Contractor for costs incurred for reasons not due to him.

Joe

Hi Joe,

It is usual to find the Contract Documents identified in the Contract Agreement (which is separate to the Conditions of Contract; in fact, the FIDIC Conditions themselves will similarly be listed as one of the Contract Documents in the Contract Agreement, along with the Specification, Drawings and perhaps B/Qs.) Alternatively, the Contract Documents may be listed in the Appendix to Tender or form of Tender (see reference to Clause 43.1 of FIDIC Conditions)

In my experience, the Contract Programme (sometimes called the Master Schedule or Programme) is normally also identified and listed in the Contract Agreement as a Contract Document – if it is not listed, then someone (probably a lawyer!) has made a serious omission in drafting up the Contract!! The Documents listed in the Contract Agreement are prioritised under Clause 5.2 of the FIDIC Conditions, and therefore the Contract Programme should be identified and listed (in whatever priority!) under Clause 5.2.

Consequently, I suggest that if your Contract Programme is not identified and included in Clause 5.2 of FIDIC, then you may have a more difficult (but not impossible) struggle on your hands to get the Employer to give the Contract Programme its proper place and authority.

I have personal experience (in the Middle East and elsewhere) of an Engineer being very reluctant (or too lazy) to award an equitable EOT [bit like us Scotsmen opening our wallets…;-)]
You are correct that under FIDIC there is no set time limit upon the Engineer to make his determination, although there is a limit on the Contractor (28 days) by which to give notice and again to give details of his claim (see Clause 44.2). However, the Engineer is required to make such a decision “…having regard to all circumstances.” (see Clause 2.6), and I have argued in the past that the failure of the Engineer to make his EOT determination within a reasonable time is a breach of his duty under Clause 2.6, particularly if this causes hardship (such as additional costs and/or lost time) on the Contractor.

In your case, where the Engineer is too lazy (or scared!!) to properly grant an EOT, I would make him part of the formal problem, and you should give notice under Clause 44.1(e) that his failure to award the EOT is likely to affect the Contractor’s rights (to time and money) as noted in Clause 2.6(d). This brings the inaction/failures of the Engineer into the open and this alone can get things moving, since his inaction/failures may well hurt the Contractor and increase the Contractor’s entitlement to more time and money. (and ultimately the Employer will have to pay extra for his Engineer’s recalcitrance!)

This may all lead into a claim for Constructive Acceleration; my advice (especially if you are likely to incur LADs if you don’t accelerate), would be to accelerate as ordered, but continuously keep giving notice under Clause 44 and submit your reasons and costs (see Clause 44.2) at intervals well with in the 28 day limit (probably weekly if you can!).

I am well ware of the pressure exerted by Employers in this regard, but would suggest that pressure from the Contractor’s side can also be made in terms of ensuring that you present your claim under the Contract for time and money on a virtually continuous basis – just don’t miss any of the notice deadlines!!

Hope this helps,

Cheers,
Stuart

www.rosmartin.com

Good interpretation of Clauses with respect to compensation of EOT for a Conntractor - very helpful in some other cases also

Dear Stuart,

Let me rephrase the question:
Is the Contractor under an obligation to accelerate if the Employer instructs him to do so?

If you are familiar with the FIDIC red book, I would like to know specifically if under this form of contract, the Employer has the right to instruct acceleration, and under which clause.

Thanks

Joe Mansour

Dear Hani,
I was involved in a project in the USA where the Contractor claimed 5 months EOT, but the Client granted only an EOT of 2 months. This still left a "shortfall" of 3 months, and in order to avoid LAD’s etc., the Contractor had to implement constructive acceleration measures, even though an EOT had been granted.

Such situations are not entirely unusual, though I agree that in certain parts of the world Clients/Owners are very reluctant to grant any amount of EOT, even when the Contractor has a clear entitlement under the Contract!!

Cheers,
Stuart
www.rosmartin.com

Stuart,

theoratically, you are 100% right. But pratically, this is not a regular thing to happen, i did not know or hear that the client has granted a contractor EOT and after that an acceleration of time cause the EOT is not sufficient.....

I do not think there such understanding client anymore..


Hani

proj_planner,
To answer the question in your opening line, it is possible for a Contractor to be granted an EOT, but for it to be insufficient or incorrect; i.e., the Contractor is really entitled to a period longer than that given in the EOT.
In such a case, the Contractor could well be faced with having to engage in constructive acceleration measures, even though an EOT was granted.

Stuart
www.rosmartin.com

I think you will find that for a claim for constructive acceleration to be valid, the Contractor is required to claim for an EOT and for that request to be either denied or issued too late to be effective!

Emelyn - you posted some time ago that your revised completion date was 15 August, which was last week. I am curious to know if you completed in time, or did you have further delays that prevented you from completing?

Stuart
www.rosmartin.com

Ms. Martinez,

I think it is best to submit a request for an extension of time first and when it is denied follow it up with a constructive acceleration claim based the EOT claim. In case the EOT is granted, you can still claim for disruption or prolongation (whichever is applicable).

proj_planner

Emelyn,

I sent you two e-mails yesterday to your yahoo e-mail address. Did you receive them OK?

Cheers
Stuart
www.rosmartin.com

Hi Emelyn,

Can you please tell us what were your reson or exuses for the first EOT and what are those of the second that you are trying to establish at the moment

Hani

I am a bit confused with all your dates, basically, if the opening is on a certain date, and you prove time entitlement beyond it, then to be able to achieve the opening date, you need say, extra resources, overtime etc. All these, you need to substantiate and prove.
I am sure most of us have come across something like this, again, at critical stage towards the opening, keep ALL records properly.
Good Luck

Abdullah Haji Hukum