My comments are given in red font below :----- Original Message ----From: "Begbey, Richard"

To: sam99@eim.ae
Date: Mon, 26 Apr 2010 16:52:32 +0400
Subject: RE: MSc modules likely to be exempted - Final Call for Advanced Class

Prof Sam
Please could you send me the details of the topics covered by the CA-AC and the CAMC.
If all three sound, advanced & master class are all complete does this exempt you from
the entire MSc?
CA-AC subjects are as shown in the CA-AC Flyer. They were given in more detail and
highlighted in yellow in the previously sent module sheet.
CA-MC topics are still not finalized.
If the talks with the Uni are successful, there would not be a CA-MC. Instead, the Alumni
would have the opportunity to enroll for a University MSc consisting of 8 modules + a
dissertation (of which 3 could be exempted as shown in the previous module sheet. These
3 modules cover the 10 sessions of the SCA and the 6 sessions of the CA-AC). The
following are under discussion:- PG Certificate for those (who are exempted from the 3 Modules) who wish to
complete only one module of the Uni's typical MSc programme. (50% discount from the
fees of the exempted 3 modules)
- PG Diploma for those (who are exempted from the 3 Modules) who wish to complete 5
modules of the Uni's typical MSc programme. (60% discount from the fees of the
exempted 3 modules)
- MSc for those (who are exempted from the 3 Modules) who wish to complete 5
modules of the Uni's typical MSc programme and complete the dissertation.(70%
discount from the fees of the exempted 3 modules)
If the talks fail, then there would be a CA-MC of 10 sessions conducted by me covering
topics such as Contract Law, UAE law applicable to contracts, Drafting D&B, GMP, Cost
Plus contracts, How to become an Arbitrator, Disruption & Acceleration, Art of
successful negotiation etc.
I will keep the Alumni informed of progress.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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
Richard Begbey
Cost Consultant MRICS
----- Original Message ----From: ben Samalca
To: sam99@eim.ae
Date: Tue, 04 May 2010 10:42:09 -0700 (PDT)
Subject: "Loss of Profit on Omitted Items

Dear Prof (Dr) Sam,

Good day! I was one of the alumni of November batch of 2007 SCA. First of all let me thank you
for your continuous support by copy furnishing us even the recent Q&A even though we're not
student anymore of your class and by that we take our hats to you.
The reason I have emailed you was because of my query regarding how we can claim for "LOSS
OF PROFIT ON OMITTED ITEMS". I'm working on a Facade Glazing/Cladding company and we
are subcontracted by the Main Contractor and our contract was a fixed lump sum and recently
some items was omitted from our scope of works w/c was approximately 5 million AED so in this
case how we will claim for "LOSS OF PROFIT"? Is there any formula that we gonna apply?
Please comment, thanks.
We discuss in detail how such situations are dealt with, during the CA-AC. Briefly, first you have
to establish whether the omission is necessary or appropriate under the variation provision under
the contract. If not, then it amounts to de-scoping which would be construed as a breach of
contract by the other party giving a right to damages/compensation. There is no specific formula.
Whatever the injured party can prove as what he would have otherwise gained had he been given
the opportunity to complete the de-scoped part (including under-recoveries, loss of profit etc.)
would be what he would receive as compensation.
There are no further CA-AC classes planned for this year. Another Class would be conducted
only if the SCA Alumni request for one. SCA Alumni are requested to email their interest in this
regard.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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

Respectfully yours,
Benjamin Samalca
From: hemanthi fernando [mailto:fernando_hemanthi@yahoo.com]
Sent: Thursday, April 08, 2010 9:18 AM
To: Prof. Sam
Subject:

Dear Professor,
Would you please advise me the clear procedure for adjusting 'PC rates'
and 'Provisional Sum' in a lump sum contract.
The Provisional sum would be deducted from the Lump Sum Contract
Price and in its place one of the following would be added:-

Final Account of the Nominated Subcontractor plus the

Contractors mark-up percentage on it, where the work is done by a
Nominated Subcontractor, or
Value of work done calculated according to Clause 52 (FIDIC -4th),
where the work is done by the Contractor.

In lump sum scenario should we really adjust the PC rates. Yes. The
difference in the PC and the actual purchase rate of the material plus the
OH&P should be multiplied by the actual quantity of the work done and
the product should either be added to or deducted from the Lump Sum
Contract Price.
Since there are many questions on the PC raised by the Alumni, I will
include it in the Bridging Course (if the MSc efforts are successful, or in
the CA-MC, if they fail)
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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

Thanks & Regards

Hemanthi Fernando
----- Original Message ----From: Walid Yamany
To: sam99@eim.ae
Date: Sun, 02 May 2010 14:57:58 +0300
Subject: Question to Dr. Sam

Dear Dr. Sam,

We are a Contractor working in infrastructure project in a lump sum contract, under
FIDIC 1999. Our original Contract duration was 730 days. The Client instructed a huge
additional variation order which necessitated the extension of the Contract duration by
395 days.
The client agreed to give the necessary time for this variation (395 days) but with respect
to cost he declared that he shall deduct the cost of 47 days that he believes was the delay
of the Contractor in his original scope.
My questions are :
1. Has the Client the right of deducting the cost of the delay from the EOT cost of
the Contractor if the extension of time is calculated purely as the time required for
additional works? No, if the effect of the 47 day delay is concurrent. Yes, if the
effect of 47 day delay is sequential and the 395 day EOT is given as a dottingon (Lord Denning), as discussed during the SCA 3 rd session. The appropriate
delay impact analysis would show whether the effect is concurrent or sequential.
2. Should the strategy of the Contractor in such a situation be oriented on
challenging the 47 days, claimed by the Client, as not being completely attributed
to the Contractor responsibility or should he focus on the contractual obligation
imposed on the Client to pay the complete cost of extension of time required for
additional work irrespective of any other delay whether caused by the Contractor
or the Client? Yes or No according to the above scenarios, and in such a case what
Clauses in FIDIC 99 supports this argument? FIDIC 4th and FIDIC 1999 do not
have provisions to deal with concurrent delays and that is why we came up with
12 arguments in favour of the Contractor (vis--vis 3 arguments of the Employer)
during SCA 3rd session and arrived at a conclusion on a balance of probabilities,
which is the level of proof required in contract law.
Regards,

Prof. Sam.

Prof. Indrawansa Samaratunga PhD, DSc

FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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 for your support

Walid Yamany
----- Original Message ----From: Berat Uygun
To: sam99@eim.ae
Date: Thu, 29 Apr 2010 08:11:58 +0400
Subject: Steel Sleeves for water pipe line road crossings

I am not sure whether have you received my e mail sent on 20/03/2010. Therefore I am
sending it again
Dr. Sam,
I would like to thank you first for all the enlightening lectures and answers to various
queries. I am one of attendees of September 09 SCA course.
If you have time please send me your view or comments for the following situation;
1. Our Contract is re-measurable, method of measurement CESSM3 and contract type
FIDIC 4th edition which is amended by the Employer .
2. We have been entitled for 56 days of EOT at the beginning of project due to late
provision of Design NOC from DEWA by employer which is necessary to obtain
construction NOC by us.
3. When we received DEWA Design NOC from Consultant attached with DEWA
approved water line network layout drawings, it was noted that steel sleeves to be
provided for 450mm Pipe under road crossing and for all pipes under double
carriageway road crossing on the drawings. Steel sleeves are not shown in any Tender
drawings or not mentioned in Contract specifications. Also there is no corresponding
BoQ item for the same.
Shop drawings (including steel sleeves for water pipe line road crossings in
accordance with above quoted DEWA design NOC comment) are prepared and approval
of the Consultant and DEWA obtained by us, work is executed accordingly. We issued
NOV for steel sleeves and the Consultant had certified the cost of the same as a variation
since January 2009.
4.

5.
Recently the Consultant sent a letter enquiring the validity of Variation in the light
of below quoted Contract Specification statement;
Comply with standards of authorities having jurisdiction for potable-water-service
piping, including materials, installation, testing, and disinfection.
Consultant argument is based on following arguments;

1.

Water pipe lines cross roads shown in Tender Drawings regardless showing
steel sleeves or not,

2.

Steel sleeves for road crossings are required as per DEWA (which is authority
having jurisdiction) regulation,

3.

DEWA regulation is part of Contract in accordance with above quoted Contract

Specification,

4.

Contractor was in a position that allowed him to expect the authoritys

requirement for the concerned sleeves and to allow for them in his Tender
whether shown or not on the drawings. Accordingly this matter could not be
considered as a variation.

6. We explained that our obligation to comply with standard of authority does not
include design of water network or reviewing of the Consultant design during tender
stage whether their design complies with DEWA regulation or not.
Also we emphasized that the Contract is re-measurable and that the use of any
method of measurement other than CESMM3 in the preparation of the BoQ
should have been expressly stated in the Preamble of BoQ. Furthermore the extent
of work affected by any amendments to CESMM3 should be stated in the
Preamble of BoQ in accordance with Clause 5.4 Section 5 of CESMM3. There is
no exception for steel sleeve in Preambles to Contract BoQ and reviewing the
Consultants Design during tender stage prior to insert BoQ rates.
Despite of above summarized arguments, we couldnt convince the Consultant
that the subject work is a variation.
Your valuable comment in this regard will be highly appreciated.
Where a contractor is required to allow in his pricing for complying with the
standards/regulations of an authority, what should be at contractors risk are giving
notices, obtaining NOCs, paying fees, unspecified temporary work, unspecified
workmanship, coordination etc. and not the material. For instance, if the drawings show a
100 mm pipe, whereas the regulations require a minimum 150mm, the contractor cannot
be held responsible to provide the larger diameter pipe at no extra cost (except in a
Design & Build contract).

If the designer did not know about the authority requirement of the sleeve and therefore
did not show it, one cannot expect the contractor to have a better knowledge than the
designer and allow for it in his pricing !
In a case where the designer knew about it and made a mistake by not showing it, then,
when it is later introduced it obviously would be a variation. Likewise, the introduction of
the sleeve in the former case too should be construed as a variation, because the
knowledge or the ignorance of the designer cannot be material to the outcome of either
case, affecting the contractor.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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
----- Original Message ----From: Santhanam Chandra Mohan
To: sam99@emirates.net.ae
Date: Tue, 27 Apr 2010 16:49:58 +0530 (IST)
Subject: Query on Contract
Dear Sir,
Find attach comments.
However the same shall be forwarded to Alumini for their
knowledge.
Regards
Chandra Mohan

Question 1
Question on Bonds and Guarantee
Case - A
In a Project, a situation raises that the Client wants to en-cash the Bond due to Contractor
failure, the Bond states as follows
Upon Employers first demand to bank the Bank pays the beneficiary (Employer)

In that case, what is the bank procedure in settling the money to Client? Whether the bank
will get the Consent from the Contractor who is the Client to them or they will
immediately settle the amount. Immediately settle.
Case B
In a Project, a situation raises that the Client wants to en-cash the Bond, (without any
reason) since the Bond states as follows
Upon Employers first demand to bank the Bank pays the beneficiary (Employer)
In that case, what is the bank procedure in settling the money to Client? Whether the bank
will get the Consent from the Contractor who is the Client to them or they will
immediately settle the amount. Immediately settle. However, the Contractor can sue the
Employer for damages.
Question 2
What are the parameters constitute in Over Head. During the SCA 6th session we
discussed in detail what constitutes Head Office OH and what does not, in relation to
what can be claimed and what cannot. See the 8th slide in the handout. Other than that,
generally when the expression Over Heads is used it means both Head Office OH and
Site OH. If OH&P is used OH means only Head Office OH.
As per Fidic 1999, Clause 12.4 - Omissions
Whether if a Work is omitted from the Contract, is the Contractor entitled for Over head
from the omitted work. Yes.
Whether Contractor can claim for loss of Overhead on the omitted activity. Yes. If so how
it is calculated. At the OH percentage (agreed or obtained from a rate analysis) on the
value of omitted work. Due to this, and due to the absence of a provision similar to 52.3
of FIDIC-4th, and many other shortcomings, the QS input required from a Contractor and
the Engineer for FIDIC 1999 contracts are more than double that for FIDIC-4th. We
discuss these issues and many other shortcomings of FIDIC 1999 in detail during CAAC. There are no further CA-AC classes planned for this year. Another Class would be
conducted only if the SCA Alumni request for one. SCA Alumni are requested to email their
interest in this regard.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

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