Expert: Emilian TRAISTA - 5/26/2010

Question
I have question regarding Sub-Clause 4.12 [Unforeseeable Physical Conditions] of the FIDIC 1999 (New Red Book). The Project is a hydropower project with massive underground works. I am representating from the Contractor.

The Employer had stated following wordings in the Particular Conditions of the above Sub-Clause:
".... excluding natural physical conditions".

With this provision, all the natural physical conditions will not be included under this Sub-Clause and we are facing serious difficulty to make claims on ground of bad conditions encountered during the tunnel excavation.

It was our mistake that we could not defend before the Contract Agreement.

Is there any possibility to force the Engineer to amend this Sub-Clause? Can you tell us any alternative measures to determine the EOT and the Cost on the ground of Unforseeable Physical Conditions eventhough above provision still exists in the Contract?

Regards,
Zenith Sharma

Answer
Dear Zenith Sharma,

Thank you for your question.
I feel honored to help you in finding an answer to such a delicate issue.

As a preliminary approach to the subject:
1. No one can force the Engineer to amend the Contract. Only the Parties (Employer and Contractor) can agree on a change in the Contract.
2. There are always ways to obtain an EoT (and additional Costs).

In order to go deeper into the subject I need to make a thorough analisys of your Contract and of the actual situation on Site. This would mean that I come and seat with you (and/or anyone else responsible with the Site Management) and spend some time to understand, prepare and support your submission in front of the Engineer and/or Employer.

If you decide this way, I am prepared and willing to respond to your request.

Waiting for your further questions or proposal,

Yours sincerely,
Emilian Traista, Independent Consulting Engineer