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My comments on your queries are given in red fonts below :----- Original Message ----From: Ashoka Ranabahu

To: "sam99@eim.ae" <sam99@eim.ae>


Date: Mon, 19 Aug 2013 23:53:10 -0700 (PDT)
Subject: Nomination of Sub Contractor

Dear professor Sam,


Good morning to you, I would like to take little time from your valuable day for following;
Can Engineer instruct Contractor to nominate any Sub Contractor for Variation work if it is not under
PC or PS item? ( under FIDIC 1999 condition of contract)
There is no provision in FIDIC 1999 to do that. What the Engineer must do is to first issue an instruction pursuant
to Sub-Clause 3.3 to add a Provisional Sum for the additional work required, and thereafter to issue instructions
under Sub-Clause 13.5 (b) nominating a subcontractor.
However, the Contractor would be entitled to claim EOT, Costs and profit if the additional works result in a
prolongation. The Contractor is also entitled to negotiate with the Engineer/Employer, his OH&P percentage on
the value of work done by the Nominated Subcontractor, and is not bound by the percentage given in the
Appendix to Tender.
Clause 13 of FIDIC 1999 is discussed in detail during the Contract Administration Advanced Class. Next
advanced class starts on 4th October 2013 (which is the last class this year).

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 and regards,


Ashoka ranabahu

---- Original Message ----From: Palanivel


To: "Prof. Sam" <sam99@eim.ae>
Cc: "'palaniqs@gmail.com'" <palaniqs@gmail.com>, "'palanivelvdm@gmail.com'" <palanivelvdm@gmail.com>
Date: Sat, 17 Aug 2013 16:30:59 +0400
Subject: HOOH Calculation

Dear Sir,
You will be pleased to learn that I have received confirmation of
AIQS(affil) membership
Thank you once again for your assistance.

I have a query for using your HOOH formula.


I have four(4) projects all are having major extension of time in
One financial year. By using your formula I find that, the total
HOOH entitlement is far greater than the audited account for
that financial year. Is there any adjustment necessary to you
formula in such case.
CONGRATULATIONS ! on becoming an AIQS Affiliate.
Regarding your question, you do not appear to have applied the formula correctly. Since the rationalized
overheads of any given period is apportioned to all projects in progress during that period, even if several
projects were in EOT during that period, the sum total allocated to all those projects would accurately add up to
the rationalized overheads of that period. Please check your handouts, and voice recordings of Session 6 of
SCA.
It may be beneficial for your Company to pay the AED 280/- fee for the Overheads Session (No. 6) of the SCA
course to refresh your knowledge. There is a class in progress at present at Traders Hotel Deira and Session
No.6 would start at approximately 5.15 pm on Friday the 23rd, August 2013.

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,
Palanivel.V
-----Original Message----From: "Ashfaq MS" <ashfaq.ppm@gmail.com>
Sent: Tuesday, August 13, 2013 4:35pm
To: "Dr. Sam" <drsam@rakfzbc.ae>
Subject: Re: project manager

Hi Sir ,
I was in the class of Nov'12 and remember that you in the lecture have mentioned that contractors
representative on site is by error called as project manager .
can you please explain this.

In the construction industry Project Management is an element in the procurement routes (see the
handout of 10th Session of SCA), and therefore Project Manager is a professional of a different
discipline altogether, providing his services to the project Developer/Client. The correct designation for
the contractor's chief person on site is Contractor's Representative. In recognition of this fact FIDIC
1999 has made this term a defined term as we discuss during the Advanced Class.

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
Ashfaq
bin ghalib , dubai

----- Original Message ----From: alex casicas


To: "sam99@eim.ae" <sam99@eim.ae>
Date: Mon, 29 Jul 2013 05:24:40 -0700 (PDT)
Subject: contractd administration

Dear Doctor Sam,


I am Alex and I'm one of the older batch of SCA and Advance Course.
I would like to seek your comments on the following case below:
The CONTRACT is essentially a remeasurable construction contract, with
all engineering being the responsibility of our consultant. However, in
certain exceptional cases the engineering of specific items were left to the
contractor.
Case in point is the Contaminated Water Treatment Plant. The SOW states
in The contractors scope of work for the CWTP is for, but not limited to,
the detailed design, supply, manufacture, in connection with all
elements of the work.
It also states : The conceptual arrangement of the processing equipment
is shown on the drawings. This conceptual arrangement may be taken by
the contractor to develop into a final design.
CONSULTANT included a concept design with some drawings in the Tender,
with a number of items listed and quantified in the bill of quantities (BOQ).
Further, the description of work for various units at the Bill of Quantities
states that the units are to be Complete with all inlet and outlet flanges,

valves, control system, fittings and accessories to provide a functioning


machine.
Now, as happens so often, at time of Tender, CONTRACTOR appears to
have priced the items in the BOQ, and did not spend time reviewing the
concept design. No change was made to the system requirements from
Tender to now, but after execution of the detail design recently, the
contractor discovered that the treatment plant needs to be a lot more
sophisticated than the basic settlement system allowed for in the concept
design, and hence a long list of additional items are required to a value of
approx $1m.
Although the responsibility for the design is clearly with CONTRACTOR, it
is complicated by the fact that the concept design provided
by CONSULTANT was substantially inadequate, and the fact that all items
should be priced as per estimated quantities. In hindsight this part of the
BOQ should have been made a lump sum, but now the issue arises
whether pumps, tanks, agitators, etc can be deemed to be included in
control systems, fittings and accessories; or whether we can justify
issuing a Change request for the additional items.
Contractors design responsibility appears to be clearly specified. The
given concept design/drawings should be read as the Employers
Requirements (performance requirements). Unless these performance
requirements were later changed by the Employer/Consultants, there is no
question of a Variation.
Wording such as provide a functioning machine are wide enough to
allow the few measured items to be construed to include all costs of the
CWTP. Therefore there is no possibility of requesting a re-measurement of
all missing items, (unless a Method of Measurement is stated for these
items, which Method requires the Pumps, Tanks etc. to be measured as
separate items, plus the Method also states that any departure therefrom
should specifically be stated in the Preamble, and there is no such
departure stated in the Preamble).
Hope we have another course after the advance course. If there is when?
Mid 2014.
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

Appreciate your comments.

bEST rEGARDS,
Alex
----- Original Message ----From: mohamed ifham
To: "sam99@eim.ae" <sam99@eim.ae>
Date: Sun, 28 Jul 2013 09:56:39 +0100 (BST)
Subject: Clarification

Dear Professor,
Hope you doing well.
I am an alumini of SCA from Qatar. Please clarify the below issues.
1. Our project (Design & Build) has a large amount of PS for infrastructure (around 500 million). Can
the contractor claim for materials on site for provisional sum items? Is there any provision in the
contract? (Form of Contract is Ashghal Design and Build 2007 edition). If the instruction to expend the
PS has been issued, and the material approvals have been obtained, then material procured for this
work would be the same as any material procured for the rest of the Works (and could be claimed if
Ashghal contract has a provision for payment for material at site, similar to other standard forms of
contract)
2. In the same contract there is no P&OH percentage is mentioned for PS items. How we can tackle
this issue as a consultant? If the work is instructed on the Contractor, then since it would be valued in
the same manner as Variations are valued, the OH&P % found in the other BOQ rates would be
applicable. If the work is to be done by a Nominated Subcontractor, if there is a % given in the
Appendix to Tender (as in FIDIC forms of contract), it would be applicable, otherwise the parties would
have to establish a % by mutual agreement.
3. Can Contractor request an on-account payment for the said PS works? If yes what is the procedure
and where is mentioned in the Conditions of Contract? If the work is done by the Contractor then the
on-account payment provisions applicable to other scope of Works would be applicable to the PS
work as well. If by nominated Subcontractor, then as and when the Nominated Subcontractor submits
his on-account payment applications pursuant to the provisions in the subcontract, the Contractor can
include them in his monthly payment applications.

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 and Regards,


Mohamed Ifham.

Doha - Qatar

----- Original Message ----From: Sreenivas.R@wadeadams.com


To: sam99@eim.ae
Date: Thu, 27 Jun 2013 09:59:38 +0400
Subject: Under Recovery of Prelims

Dear Sir,
I am one of your students of SCA Alumni, Please comment about the under recovery of
prelims, We are the subcontractor to the main
contractor.
1) Our BOQ Rate includes prelims. In this case, if the item is omitted, or decrease in the
quanity, how we can recover the prelims for each item which falls under
omission/decrease in quantity.
I have attached conditions of contract of clause 12.3, 12.4. Could you please comment on the
formula, which will be the strong base for our claims.
The under-recoveries of Preliminaries and also the Headoffice overheads resulting from
omitted work can be claimed under Sub-Clause 12.4 (FIDIC 1999), and not under 12.3. What
can be claimed under 12.3 is the under-recovery of direct costs. Both calculations are very
complex and are not possible to be explained in this short Q&A forum. We cover this topic in
great detail with worked examples during the Contract Administration Advanced Class. It
would be very beneficial for your company to send you for the next Advanced Class which
starts on October 4th 2013(which is the last class this year).
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

Thanking you and awaiting your blessings.


Shreenivas.V.R.
Quantity Surveyor

----- Original Message ----From: rjohnn samson


To: "sam99@eim.ae" <sam99@eim.ae>
Date: Tue, 25 Jun 2013 21:46:26 +0800 (SGT)
Subject: Re: Q&A

Dear Professor,
Thank you for the Q&A's, it is a big help to further sharpen our skills in contract administration.
I have a case that I would like to refer for your comments.
The project is a franchise of a restaurant chain where my director invested in a branch in the UAE.
The franchisor is contracted by my director to deliver the restaurant ready for occupation. The scope
included the construction of a restaurant in which the franchisor contracted a local contractor to
undertake.

The contract between the franchisor and the contractor is in bespoke form and lumpsum. The
agreement has no reference to any standard form of contract such as FIDIC 4 th Edition. It also has no
reference to the Franchise Agreement between the franchisor and my director.
During the final stage of the project, I was called in by my director to make an independent review of
the final account statement prepared by the contractor and recommended by the franchisor. After
learning that the contract agreement is between the franchisor and the contractor, I advised my
director that we cannot engage or make comment or negotiate directly with the contractor. However, I
told my director that we can recommend our findings for the franchisors consideration.
I have completed my assessment and sent it to the franchisor. The franchisor then coordinated with
the contractor but has failed to agree the figures. In this regard, the franchisor requested us to meet
with the contractor. My director accepted the invitation (as the contractor agreed to meet with us) in
hope that the issue will be resolved. After few meetings, the matter was settled and the final account
agreed.
My questions are the following:
1. Am I correct when I advise my director that we cannot deal directly with the contractor? You
cannot deal with the contractor on contractual / legal matters, but there is no harm in engaging in a
friendly advisory / mediatory role.
2. What will be the implication of us meeting and agreeing the final account with the contractor, can the
contractor deny later on any agreement made between us as my director is not a party to the
contract? Yes.
3. I found lots of inconsistencies with the contractors statement, however the franchisor recommended
it; if the contractor insists on their statement, is there any way of challenging it? This is a matter
between the Franchisor and the Contractor.
4. I am presenting this case in my APC interview and I appreciate if you can give some thoughts on
the same.

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 and Best Regards,


Ronnie John Samson

----- Original Message ----From: Josenia DelaCruz


To: "sam99@eim.ae" <sam99@eim.ae>
Date: Tue, 25 Jun 2013 06:16:40 +0000
Subject: Computation of Liquidated Damages per day

Good morning Professor Sam,


I apologise for bothering you but I need your comments regarding the above
subject.
I know that the standard formula in computing LD and which I normally use is:
10% of contract amount over fifth of contract duration.

Now, I would like to know what is the basis of this formula? Any reason why it has
to be the fifth of the Contract duration?
I appreciate if you could explain this to me since I really need the information
urgently.
There is no standard formula of that nature. LDs per day should be calculated as the pre-estimated loss per day
to the developer and accordingly stated in the Tender Documents.
Where it cannot be estimated (such as for non-completion of a Roads project of a Government Developer)
sometimes formulae of the nature mentioned in your email, is used, but it is solely at the discretion of the parties.

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

Josenia (Fatimah) Dela Cruz


Senior Quantity Surveyor
----- Original Message ----From: Manjula Jayawardana
To: sam99@eim.ae
Date: Mon, 24 Jun 2013 11:40:08 +0300
Subject: Re: First Set of Q&A
Dear Sir,
I have a contractual matter in a Project ( Form of Contract- Qatar General Condition of Contract with
amendments , Type of Contract - Lump Sum ) .
Initially, Project was designed by separate Design Consultant appointed by the Employer. Then, the Employer
selected Supervision Consultant as the Engineers representative . After Supervision Consultant appointment, the
Employer gave design review for Supervision Consultant Head office( SCHO) and included this scope as an
amendment in their Supervision Professional Service Agreement.
During the Design review, SCHO has assigned Redesign responsibility to the Contractor if required but not
subject for any variation and it was incorporated in the Tender Documents. Afterward, tendering process was
commenced. Also, Redesign Responsibility had been further clarified during tender clarification stage to
tenderers in response to several Tenderers concerns over that.
Presently, There is redesigning process going on for structural works and the Contractor has an intention to
claim.
In this regard, I kindly request from you to give your valuable comments about Contractor s entitlement.
From the information you have conveyed, the Qatar Government Conditions of Contract (which is a build
only) appears to have been modified into a Design & Build contract. To the extent that designing / redesigning is
either expressly stated in the signed contract or could be inferred therefrom, the Contractor is unlikely to succeed

in any argument that he is carrying out any additional work / tasks that could not be foreseen at the time of
signing the contract.

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,
Manjula Jayawardana,
Quantity Surveyor
----- Original Message ----From: sanjay dubey
To: "sam99@eim.ae" <sam99@eim.ae>
Date: Mon, 17 Jun 2013 12:36:28 +0800 (SGT)
Subject: quarry

Dear Dr. Sam,


Good morning. I hope you will fine by God grace.
I have a little query.
Is contractor entitled for any payment in interim Bill against the provision of obtaining
the building permit in BOQ before completion of project?
Your immediate response shall be highly appreciable.
If the Contractor has obtained the building permit (which is unlikely) prior to project
completion, and the permit is not defective, then he is entitled to the payment.

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,
Sanjay Kumar
----- Original Message ----From: Sudheer Edamana
To: "Prof. Sam" <sam99@eim.ae>
Date: Thu, 13 Jun 2013 07:24:37 +0300
Subject: Re: Latest Q&A
Dear Sir,
I have a small issue on a Contractual matter which is as follows:
The contract is Lumpsum, and there is an item for cable intended clearly mentioned in the BOQ discription
up to a stable. We are deleting the stable from the scope of works.

The BOQ quantity for the cable and the actual quantity are different. what quantity to be taken for deletion, based
on BOQ or actual remeasured ?
Actual quantity shown on the contract drawing.

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

I appreciate your early response for the same.


----- Original Message ----From: Kembhavi
To: sam99@eim.ae
Date: Mon, 10 Jun 2013 11:38:55 +0400
Subject: Query regarding drafting a Contract Agreement

Dear Dr. Sam,


Good morning!
I am one of your alumni student for SCA and AC-CA classes held in 2010 &
2011.
Dr while drafting one of the clauses in Contract Agreement , which states
the following:
Governing Law: Federal Laws of the United Arab Emirates and any applicable local laws
of the Emirate of Abu Dhabi.

In one of the other contract it was mentioned that Federal Law of UAE,
for this document we commented as Federal Laws of UAE.
But our Contracts Administrator argue that it should be Federal Law is
only one for UAE thats why it should be Federal Law not Laws.
Federal Laws of the United Arab Emirates and any applicable local laws of
the Emirate of Abu Dhabi, is the correct wording because in addition to
the Federal Laws which are applicable to all the Emirates, each Emirate
has its own Emirati (local) laws.
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

Kindly comment which one is correct and why.


Regards,

Shamsundar.Kembhavi
Cost Engineer
----- Original Message ----From: Swaroop Sebastian
To: sam99@eim.ae
Date: Sat, 08 Jun 2013 13:57:32 +0400
Subject: Doubt - Arbitration
Hi Prof Sam,
In one of our Subcontract Agreement we have with a major Contractor in Dubai, the Arbitration clause says "the
place of arbitration shall be the Seat".
What exactly does this mean? If there is a requirement for arbitration, can the arbitration be done in Dubai?
Seat is where the arbitration is conducted and the Award is issued. Check in the Appendix to Tender whether the
Seat is mentioned. If both parties agree, they can select Dubai as the Seat, but remember to state this in the
Arbitration Deed to be signed among the two parties and the arbitrator (i.e. if it is not already mentioned in the
subcontract)

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
Swaroop Sebastian
----- Original Message ----From: ayman.el-shaar@strabag.com
To: sam99@eim.ae
Date: Sat, 08 Jun 2013 10:19:39 +0400
Subject: Re: First Set of Questions & Answers

Dear Prof. Sam ,

I have a question concerning whether it is a correct practice to apply the retention percentage on the
agreed variations . Yes .

I have worked with different companies and we always apply the retention percentage to the agreed
variation . According to the lecture this is a wrong practice. No, at the lectures we clearly discussed
that Variations are subject to retention (but only up to the limit if Retention).
However, when we read Sub Clause 60.2 (a) of the FIDIC 1987 it states that the retention of the
amount calculated by applying the percentage of retention stated in the Appendix to tender to the
amount to which the Contractor is entitled under paragraphs (a) , (b), (c) and (d) . of Sub Clause
60.1 . Note that (d) is not there it should be (e)
Sub Clause 60.1 (d) states , any other sum to which the Contractor may be entitled under the
Contract . I think you are referring to (e)

The question is , do Variations fall under Sub Clause 60.1(d) , which makes them subject to retention.
Variations are Permanent Works and therefore fall under paragraph (a) and are subject to Retention.

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.
Regards,
Ayman El-Shaar

----- Original Message ----From: Palanivel


To: "Prof. Sam" <sam99@eim.ae>
Date: Mon, 19 Aug 2013 16:16:39 +0400
Subject: Clause 55 and 56 Oman condition of Contract

Dear Sir,
Can you please advice below interpretation is correct or not.
Because I gave my explanation as follows whereas my superior does not agree
with that.
Kindly comment.
Clause 55 (Lump sum ) (OMAN COC)

Caluse 56 (Re-measured) (OMAN COC)

Your question is not clear and the explanation you are referring to is not apparent from what you have sent.
Both 55 and 56 cannot exist together in a contract. One of them should be deleted. If 55 is deleted, then the
contract is re-measurement type, and therefore all executed work would be re-measured for payment
purposes. If 56 is deleted, then the contract is lump sum type, and therefore only instructed variations would be
measured for valuation purposes, but any errors in the items/quantities would not be corrected as they are at
contractor's risk.
If the Employer forgot to delete one of them, then there is an ambiguity as to whether the contract is lump sum
type or re-measurement type, and therefore the court or the arbitrator would delete the clause which is
unfavourable to the Contractor and declare the contract to be either lump sum type or re-measurement type, as
the case may be, in compliance with the legal requirement of interpreting the ambiguity in favour of the obligor (in
this instance, 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

Palanivel >V
----- Original Message ----From: Palanivel
To: "'sam99@eim.ae'" <sam99@eim.ae>
Cc: "'palaniqs@gmail.com'" <palaniqs@gmail.com>, "'palanivelvdm@gmail.com'" <palanivelvdm@gmail.com>
Date: Tue, 20 Aug 2013 12:53:54 +0400
Subject: RE: Clause 55 and 56 Oman condition of Contract

Dear Sir,

Thank you for your great help.

If we consider clause 55 is Lump sum contract. Sub Clause 51.2 seems to be


ambiguities.

Kindly advice as a contract administrator how do I demonstrate.

Estimated
Quantities
55.

(1) The quantities set out in the Bill of Quantities are the

estimated
quantities of the work, but they are not to be taken as the actual and
correct quantities of the Works to be executed by the Contractor in
fulfilment of his obligations under the Contract. The quantities may
vary conforming to the actual site conditions, due to errors or
omissions in the original Bill of Quantities, and on account of
variations. Such errors in, omissions from, or variation to the Bill of
Quantities shall not in any way vitiate or invalidate the Contract, not
shall the Contractor be entitled to any claim whatsoever except as
provided in Clauses 51 and 52 hereof.
Orders for
Variations to be
in Writing

51 (2) No such variations shall be made by the Contractor without


an order
in writing of the Engineer. However, as provided for under Clause 55
no order in writing shall be required for an increase or decrease not
exceeding five per cent in the total quantity of the works where such
increase or decrease is not the result of an order given under this
Clause, but is the result of the quantities exceeding or being less
than those stated in the Bill of Quantities. Provided also that if for
any reason the Engineer shall consider it desirable to give any such
order verbally, the Contractor shall comply with such order and any
confirmation in writing of such verbal order given by the Engineer,
whether before or after the carrying out of the order, shall be deemed
to be an order in writing within the meaning of this Clause. Provided
further that if the Contractor shall within seven days confirm in writing
to the Engineer and such confirmation shall not be contradicted in
writing within fourteen days by the Engineer, it shall be deemed to be
an order in writing by the Engineer.
These are typical problems that occur when alterations are made to Standard Forms. The introduction of the
"five percent" would now give opportunities for contractors to claim all quantity errors (increases) beyond 5% as
variations even in Lump Sum contracts, but for this purpose he has to first inform the Engineer about the error
and get a written instruction for the variation (which the Engineer is unlikely to issue, causing a dispute).
It would also give the opportunity to Engineer/Employer to treat quantity errors (decreases) beyond 5% as
variations (omissions), which should not be the case in lump sum contracts, and therefore the contractor would
dispute it.
It is advisable to get the reference to 5% deleted before signing the contract. Where it is not done, any disputes
in this regard referred to arbitrators/courts would be resolved by declaring such quantity errors beyond 5% as
variations.

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

Kind Regards,
Palanivel .V

From: shakthi
To: sam99@eim.ae
Date: Mon, 06 May 2013 10:44:21 +0400
Subject: Performance secrity

Dear Dr. Sam,


Have a good day.
I am one of your SCA alumni student,
I am a project quantity surveyor working in a consultancy firm, please clarify the below:

One of the NSC provide the Performance security which is going to expire in another three months time, MC
sent the notification to NSC to extend the Bond for another one year from now because still they are working in
the site (Original Completion date 2nd August 2012) but they refused. To secure the client benefit without facing
any risk as a consultant/MC what are the actions we can take in this situation.

Main Contractor can, after giving the Nominated Subcontractor proper notice to extend, call the Bond on the last day
of its validity and hold that money in an account as security in lieu of the Bond. However it is advisable to obtain
legal advice before taking this action as the type of contract/subcontract and/or the law applicable may or may
not have provisions to do this.
As we discuss in detail during the Advanced Class, under FIDIC 1999 the Employer can call the Bond of the Main
Contractor if it is not extended, and therefore the Main Contractor would use similar remedies on subcontractor.
th
Next Advanced Class starts on October 4 2013(which is the last class this year).

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

Kind regards
Siva Shakthi

MEP Quantity Surveyor