My comments are given in red below:-----Original Message----From: "Maria Victoria" <maria.victoria@enoc.

com>
Sent: Tuesday, November 22, 2011 2:00pm
To: "Dr. Sam" <drsam@rakfzbc.ae>
Subject: TOC query
Dear Sir,
Very good day to you.
I have a query regarding TOC.
There is one major project in . Oil Distribution and Trading Terminal and we
have entered a Subcontract for EPC of 12 nos. of Tanks on a back to back basis with the
Main Contractor.
The main contract is based on FIDIC EPC/Turnkey.
As a Subcontractor for this big project, please advise how TOC will be applied.
In the particular conditions, the part of Section cl. 1.1.5.6 says Not Applicable.
Does it mean that we cannot receive any TOC from Main Contractor when we have
completed our Works (Tanks) as the contract is not divided in Sections and that
we have to wait till the main Contractor receive the TOC from Employer for the whole
project to claim first half of our retention money?
If your subcontract is based on FIDIC Conditions of Subcontract or similar, then there is no
TOC provision in the subcontract. Subcontractors obligation is to complete the Subcontract
Works within the Subcontractors Time for Completion, following which the Subcontractor is
entitled to payment for the completed work except for Retention Money, which would only
be released after the Main Contractor receives his Retention Money. Usually subcontractors
insist on adding particular conditions to facilitate early release of Retention Money, and if
such a condition is not added to your subcontract, then you have to wait until the Main
Contractor receives his Retention Money (unless the Main Contractor is willing to release it
against a bank guarantee, which is an alternative you can try).
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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Appreciate your comments on this matter.

Thanks & Regards,
Maria Victoria

Contracts Engineer

----- Original Message ----From: Gamlath

To: "Prof. Sam" <sam99@eim.ae>
Date: Sat, 19 Nov 2011 11:30:36 +0400
Subject: LD on Subcontract works

Dear Prof. Sam,

I am an alumni of SCA-AC and I have come across the following situation. I seek your kind
comments on it.
We are the main Contractor and we have a Subcontract, in which, it has been mentioned that,
the Contractor can impose LD or any other Damages after providing relevant proof for the
same to the Subcontractor.
Now the Subcontractor has delayed two months but, it has not affected to the main
Contractors program. That means main Contractor is not liable for LD from the Client.
However, we have incurred some additional cost due to Subcontractors delay, for which we
cannot provide proof clearly. Our management is insisting to impose LD on the
Subcontractor.
Can we impose LD on Subcontractor without giving proof?
If the subcontract is based on FIDIC Conditions of Subcontract or similar, then LDs can be
levied on the Subcontractor only if the Employer levies LDs on you, and not otherwise. The
Subcontractor has to, of course, pay you all your costs and the costs of your other
subcontractors incurred as a result of the Subcontractors delay, but proof of such costs is a
must.
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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Many Thanks & Best Regards

Gamlath
----- Original Message ----From: Palitha Adikari
To: "Prof. Sam" <sam99@eim.ae>
Date: Mon, 14 Nov 2011 01:35:40 -0800 (PST)
Subject: Re: Q&A _question from a former student

Dear Professor,

I , Palitha Adikari, have attended your Sound Contract Administration course

before in Dubai and currently working in Qatar with a Real Estate Developer.
One of my Infrastructure Construction Contract based on FIDIC 99 Red book, was
on hold(work partially suspended) due to the Clients later decision to include DC
& Gas network to the project. In order to procure DC&Gas with minimum delay to
the existing contract and to avoid prolonged suspension, the Client has decided
(based on my advice) to award the DC & Gas scope to the same contractor as an
additional Design & Build scope. The contractor has agreed to the same. It was
our understanding that the contractor can carry out Design & Build scope based
on sub-clause 4.1 last paragraph even though the original contract was based on
designed by the Employer CoC (i.e. FIDIC Redbook 99). We carried out this
exercise through an Amendment to the Contract as we introduced some new
clauses to Particular Conditions covering design liability PI insurance and further
elaboration of sub-clause 4.1.
Could you please comment on whether the action taken by me award the DC &
Gas scope to the same contractor as an additional Design & Build scope through
Amendment to the Contract is contractually correct in line with the provisions in
FIDIC 99 Red book or it is contradicting the provisions in FIDIC 99 Red book or
industrial practice . It is not contradictory to the provisions in FIDIC 99. It is also
not unusual in the Industry to get a Build Only Contractor to Design & Build part
of the original scope of work or additional work. As long as the Contractor either
himself or through his subcontractors/designers, is capable of executing the
design fit-for-purpose, the arrangement may suit both parties.
Same time please let me know if we wish to have "Advance Course" here in
Qatar, how many students you expect and what are the facilities you expect from
the organizer. Accordingly we can request SLQS-Qatar to arrange it. Those
Alumni who have completed the SCA course and now employed in Qatar are
kindly requested to let me know if they are interested to attend an Advanced
Course in Qatar, to investigate whether there would be a sufficient number of
participants to make a class viable.
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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Kind Regards,
Palitha AdikariTel

----- Original Message ----From: Ganesh

To: sam99@eim.ae
Date: Mon, 14 Nov 2011 11:21:59 +0400
Subject: RE: Final Call for November Advanced Class

Dear Sir,
I have got a contractual issue and look for your comments on it.
In our project, the original completion date was 5th Sep 2011. Contract value AED
35,xxx,xxx/- Original duration of Contract was 8 months. The Contractor is in delay and
continuing with the works. The contractor has recently submitted a recovery programme to
complete the Works on 5th March 2012, while he continue to submit monthly progress
payment applications.
Delay penalty is 0.2% of the Contract sum per day to a maximum of 10%.(after 50 days, for
any number of delayed days the max deductible is 10%)

1. Are we right in holding the progress payments until completion date. No

Employer does not intend to apply penalty now and keep it until issuance of taking over (in
the penultimate payment). Can we pay the monthly progress payments without any penalty?
Yes (if necessary you can inform him that the Employer reserves his right to deduct penalties
after completion of the Works).
2. If we approve the contractor's Recovery programme, doesn't that imply that we have
agreed for a revised completion date? Such a possibility can be avoided by issuing the
consent/approval without prejudice.
Does it not automatically entitle the contractor an extension of time? dittoRegards,

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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Please reply
Regards,
Ganesan G

Quantity Surveyor
----- Original Message ----From: Yvette Tacuyan-Vivar
To: "Prof. Sam" <sam99@eim.ae>
Date: Wed, 09 Nov 2011 02:11:39 -0800 (PST)
Subject: Questions

Hi Prof Sam,
I hope that you are in good health upon reading this email.
I am currently working with a Project Management and Quantity Surveyor company
and the Company is only like new in the industry.
I am encountering new "words" whilst going through on each and every contracts
and Qs documents that the company is using as their standard form.
Can you please enlighten me regarding the following:
1. Within the LOA / Appendix to tender for the maximum 10% of the Contract Price is
stated as the Limit of Penalty, instead of using the word "maximum" they replaced
this with the word "cap", hence - "subject to cap of 10% of the Contract Price". I felt
like this is not the correct word to use if pertaining to the limit of penalty. Check the
wording in the relevant Clause in the Conditions of Contract where there is a crossreference to this specific provision in the Appendix to Tender. The same wording
should be used in the LOA and in the Appendix to Tender. For example if the wording
is similar to those in Sub-Clause 47.1 of FIDIC-4th, then the LOA and Appendix to
Tender should use the wording Limit of liquidated damages
2. Our Project is a .. warehouse, comprising of Admin Building and the
warehouse including the landscaping. They instructed the QS who will prepare the
BOQ to use CESMM3 standard for the BOQ. Is it applicable? Since as of my
knowledge, CESMM3 is for Civil Engineering works such as external horizontal civil
works. CESMM3 can be used for the Landscaping, but for the warehouse and the
Admin Building POM(I) or SMM7 should be used.
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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Thanks so much Prof.

Regards,
Yvette T. Vivar
----- Original Message ----From: Prince Arputharaj Regis
To: "Prof. Sam" <sam99@eim.ae>
Date: Wed, 09 Nov 2011 12:56:16 +0530 (IST)
Subject: Re: Q&A
Dear Dr. Sam

I have a querry.
In our project, we have some staircases inside duplex apartments, for which there are two
options either steel or precast. Both options are available in the drawings. In BOQ, the said
staircase is measured only as precast staircase. The contractor has executed it in steel option
after Engineer approval. Can the client ask a negative variation assuming the steel is cheaper
than precast for such scenario?
If it is a re-measurement contract, a new item should be re-measured for the Steel Stairs and a
new price should be agreed. If it is a Lump Sum contract, if the Engineer/Employer did not
state at the time of approving the Steel Stairs option that it is subject to a cost saving, then no
saving can be claimed, as the Contractor can successfully argue that BOQ
Items/Descriptions/Quantities should be ignored in a Lump Sum contract and the scope of
work should only be taken from the Drawings/Specification which showed both options and
that his Lump Sum Contract Price is to construct either of them.
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
Visit

www.drsam.zzl.org for details of DRSAM FZE courses

Thanks in advance for your reply

PRINCE ARPUTHARAJ.R.
Quantity Surveyor
___________________________________________________________________
Visit www.drsam.zzl.org