Jan08 Q&A 307097079

My comments are given in red below.
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: Sisira Dharmathilaka

To: INDRAWANSA SAMARATUN <sam99@emirates.net.ae>
Date: Wed, 20 Feb 2008 21:00:36 -0800 (PST)
Subject: Please clarify.
Dear, Sir
My name is Sisira Dharmathilaka worikig as Quantity Surveyor in Oman,
I have a general problem in using general condition of contracts,
We have a project, duration three years (two year construction & one year defect liability
period) now one year construction period over, in the pre contract stage estimator did his
pricing considering last five year material price escalation because there is no price
escalation in this contract. For example say last five year reinforce steel escalation was
average 30% but after one year construction over, unfortunately reinforce steel prices
has been gone up 300% in the world market till contractor to be purchase 40% of the
total steel, say his lost will be higher that the forecast net profit in the next year.
The contractions & material procumbent is on time according to clause 14 programmer
approved by engineer,
My question is, is it possible to the well experience contractor to recover his lost under
the clause 12.2? (Not foreseeable physical obstruction or conditions) No. Material price
increase cannot be construed as a "physical obstruction or condition" or if not, what are
any other possibilities to recover his lost? In forms of contract such as FIDIC - 4th
Edition, Sub-Clause 70.1 is the provision under which the Contractor can claim for
material price increases. If this Sub-Clause is deleted or if your contract is otherwise
silent about the entitlements of the parties in respect of material price fluctuations, then it
could be construed that the contract is silent as to such entitlements and therefore the law
applicable to contract would come into play. It is very likely that the law applicable to
your contract (Laws of Sultanate of Oman ? ) may have a provision to pay the contractor
fairly and reasonably and therefore you may have a remedy in law. You should get advice
from a construction lawyer who is fully conversant with the Omani Laws before pursuing
such a remedy.
If however Sub-Clause 70.1 is amended to expressly state that the Contract Price shall
not be adjusted due to material price increases, or your contract otherwise provides
expressly for the Contractor to bear such increases, then it is very likely that the courts
would hold that the Employer has passed the risk of such increases to the Contractor and
the Contractor has accepted such risk and therefore the increases cannot be recovered,
unless your lawyer is capable of successfully arguing that the particular legal provision is
a mandatory provision of law which cannot be departed from, by the parties to a contract
by inserting contractual provisions to the contrary.
Expecting answer on the above,
Thanking you & best regards
Sisira.
----- Original Message ----From: Raed Al Khlaifat
To: sam99@emirates.net.ae
Date: Thu, 21 Feb 2008 13:42:38 +0400
Subject: [No Subject]
Dear Dr.Sam
We have given Lump sum figures based on estimated quantities and unit rates for each type of
fitting.
The situation is that the Contractors are paying more to the subcontractors based on actual qty
and unit rates.
Now, shall we compensate for the difference or pay only the agreed Lump sum to Contractors?
If the contract was awarded on a Lump Sum Contract Price, then the Contractor has assumed
the risk for quantities and he is not entitled to any difference between the actual quantities in the
original scope of work and those included in his tender.
Regards,
Prof. Sam.
Please advice
Thanks,
Regards,
----- Original Message ----From: ahmed negm
To: sam99@eim.ae
Date: Thu, 21 Feb 2008 06:52:40 +0200

Subject: RE: Jan 08-Q&A 3
Dear Prof. Sam,

Please clarify the following .
Abortive work can be paid in regular interim payment certificate or can be paid
under variation order only. If the contract is Lump Sum Type, then the work carried out
by the Contractor (which is now abortive due to a subsequently instructed variation)
should not be deducted from the Lump Sum Price. Therefore the question of pricing the
abortive work as a variation does not arise, and the abortive work should be paid for, via
the payment certificates as work done. If however the abortive work has to be demolished
and removed then the value of demolishing and removing should additionally be paid as
part of the instructed variation.
If the contract is a Re-Measure Type, then the work carried out by the Contractor (which
is now abortive due to a subsequently instructed variation) should be measured and paid
via the payment certificates as work done. If the abortive work has to be demolished and
removed then the value of demolishing and removing should additionally be paid as part
of the instructed variation.
please reply as per FIDIC 4 & CESMM3 FIDIC 4 Clause 52 is relevant, but it does
not explain everything that one requires to know about valuation of work/variations of
this nature. Such knowledge should be gained from Quantity Surveying Degree/Diploma
study programmes and Training Programmes on Contact Administration/Quantity
Surveying. CESMM3 is a method of measurement and not a method of pricing or
payment.
Regards,
Prof. Sam.
Best Regards,
Ahmed Negm
Quantity Surveyor
dar al - handasah
----- Original Message ----From: Kuruvilla
To: sam99@eim.ae
Date: Wed, 20 Feb 2008 18:33:50 +0400

Subject: [No Subject]
Dear Dr. Sam,
In a D & B contract with no BOQ, for valuing variations should we use current material prices in
the rate. Yes, if the price fluctuation clause is active. Otherwise material prices current at the time
of entering into the contract, should be used.
Regards,
Prof. Sam.
The item is not a new item (for example: concrete or block work).
-----Original Message----From: Arif [mailto:a.arif@dewan-architects.com]
Sent: 21 February 2008 17:16
To: 'Prof. Sam'
Subject: RE: Jan 08-Q&A 3
Dear Prof. Sam,

Thank you Sir, With regards to the Q&A below I have another question.
Q: If the Engineer instruct the Contractor to carry out such BOQ items which are not shown
in drawings; Can the Contractor claim additional amount as
variation? in addition to the existing BOQ amount. Yes. Because such items cannot be
considered to be in the original scope of work.
Regards,
Prof. Sam.
Best Regards,
Abdul Kadir Arif

Quantity Surveyor

Jan08 Q&A 307097079

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My comments are given in red below.

----- Original Message ----From: Sisira Dharmathilaka

Date: Thu, 21 Feb 2008 06:52:40 +0200

Dear Prof. Sam,

Date: Wed, 20 Feb 2008 18:33:50 +0400

Dear Prof. Sam,

Abdul Kadir Arif

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