In my current project, the client’s engineer has copied without checking a wide repertoire of requirement in the Volume 9 on specification, and by referring to "standards" from different countries listed therein, demanded our compliance with what appeared to be grossly divergent and unworkable requirement. Application for their Statement of No Objections(SONO = the political correct way of saying "Approval" here) invariably attracted more comments as new combination discovered for experimentation from these conflicting and at time irrelevant clauses. It was quite curious how these interpretation have missed them completely during their preparation of the Contract Drawings. The Contractor has always maintain the position that BQ being not part of the contract, and specification nonwithstanding, the drawings were the sole determinant of quantum and prescription of works scope under this lumpsum price contract.
It is now obvious that if these specification were administered strictly in accordance to the printed document, there are no materials capable of meeting these requirement. And in some cases, the complexity of the jointing details, communication links(in the case of control and MEP services) coupled with the space constraints and lead time for delivery etc all made desired product way beyond the timeframe or physical possiblity of construction.
Onthe other hand and what was as serious as the "impossible construction" were the endless rounds of reviews by the Engineer in order to experiment by trial and error the various combinations of interpretation of these divergent requirement. Not only were resources and reams of papers wasted in the search for a compromised working solution, the sequence of works planned for affected and other related works were disrupted and prolonged by these events.
Although there is a provision within the contract which warrant not the completeness or accuracy of the details provided to the Contractor who carries no design responsbilities udner the Contract, these consequences of a rushed contract documentation must fairly be transferred to the Client.
What do you think can be the basis and reasons for claiming for such design development done on the behalf of the engineer, the consequential loss suffered from the disruption and prolongtation to the other sections of works?
In this case of design of "impossible construction", what would be the bases of measuring the "mixed-bag" product resulting from the compromise of specifications, which was still more complex than the un-investigated design incorporated into the Contract Drawings?
There has been some discussion of equating this situation with those of variation instructed after the due date for/of completion. It has been argued that when the time was set at large it allowed Contractor as much time as he needs to complete the project, reasonable or otherwise.
Can the Schedule of Rate the Contractor is bound to use for valuing variations of similar nature be waived in this case, by the Contractors pricing of this new scope on a "quantum meruit" basis?
In another related case, one of the nominated suppliers prequalified by the Client and the specified product were found to be not capable of meeting the test requirement stipulated in the Contract. In fact the results of some other tests done earlier and supplied by the Nominated supplier was rejected by the Client and new type tests were demanded as if the Client has just seen the Nominated Supplier’s product for the first time.
Would this dodgy prequalification and the erratic administration of prequalfied subcontractors be grounds enough to entitle the Contractor also to costs and time suffered by the increased and belated requirement?
What recourse, if any, the Contractor could seek against the Engineer for what appeared to be negligent manner the design was administered?
Wouldn’t the Client loses whatever rights he may have to impose on the Contractor those requirement specified but missed out completely from their design, or overlooked in the Clients prequalification exercise ?
Member for
21 years 4 monthsRE: Impossible Construction
with Minor Correction.
In my current project, the client’s engineer has copied without checking a wide repertoire of requirement in the Volume 9 on specification, and by referring to "standards" from different countries listed therein, demanded our compliance with what appeared to be grossly divergent and unworkable requirement. Application for their Statement of No Objections(SONO = the political correct way of saying "Approval" here) invariably attracted more comments as new combination discovered for experimentation from these conflicting and at time irrelevant clauses. It was quite curious how these interpretation have missed them completely during their preparation of the Contract Drawings. The Contractor has always maintain the position that BQ being not part of the contract, and specification nonwithstanding, the drawings were the sole determinant of quantum and prescription of works scope under this lumpsum price contract.
It is now obvious that if these specification were administered strictly in accordance to the printed document, there are no materials capable of meeting these requirement. And in some cases, the complexity of the jointing details, communication links(in the case of control and MEP services) coupled with the space constraints and lead time for delivery etc all made desired product way beyond the timeframe or physical possiblity of construction.
Onthe other hand and what was as serious as the "impossible construction" were the endless rounds of reviews by the Engineer in order to experiment by trial and error the various combinations of interpretation of these divergent requirement. Not only were resources and reams of papers wasted in the search for a compromised working solution, the sequence of works planned for affected and other related works were disrupted and prolonged by these events.
Although there is a provision within the contract which warrant not the completeness or accuracy of the details provided to the Contractor who carries no design responsbilities udner the Contract, these consequences of a rushed contract documentation must fairly be transferred to the Client.
What do you think can be the basis and reasons for claiming for such design development done on the behalf of the engineer, the consequential loss suffered from the disruption and prolongtation to the other sections of works?
In this case of design of "impossible construction", what would be the bases of measuring the "mixed-bag" product resulting from the compromise of specifications, which was still more complex than the un-investigated design incorporated into the Contract Drawings?
There has been some discussion of equating this situation with those of variation instructed after the due date for/of completion. It has been argued that when the time was set at large it allowed Contractor as much time as he needs to complete the project, reasonable or otherwise.
Can the Schedule of Rate the Contractor is bound to use for valuing variations of similar nature be waived in this case, by the Contractors pricing of this new scope on a "quantum meruit" basis?
In another related case, one of the nominated suppliers prequalified by the Client and the specified product were found to be not capable of meeting the test requirement stipulated in the Contract. In fact the results of some other tests done earlier and supplied by the Nominated supplier was rejected by the Client and new type tests were demanded as if the Client has just seen the Nominated Supplier’s product for the first time.
Would this dodgy prequalification and the erratic administration of prequalfied subcontractors be grounds enough to entitle the Contractor also to costs and time suffered by the increased and belated requirement?
What recourse, if any, the Contractor could seek against the Engineer for what appeared to be negligent manner the design was administered?
Wouldn’t the Client loses whatever rights he may have to impose on the Contractor those requirement specified but missed out completely from their design, or overlooked in the Clients prequalification exercise ?
Best Regards
Andrew Huang,
www.project-resources.com
Would be pleased to hear from fellow COntracts Managers encountering the same situation in Taiwan.