Expert: Florin NICULESCU - 2/1/2012

Question
QUESTION: Dear Florin,

Touching base with you after a long time. I still recollect the help extended last time around.

Coming to the issue at hand.....

Its an item rate contract and after certain changes from the client side the specification of an item has changed. We have submitted our proposal for the same and after getting our proposal the client says it will be finalizing the supplier and will pay me a fixed percentage of the amount. I would be doing the erection of the supplied items. My concern is two fold.
1. Can the client do so - taking away the supply part from my scope of work and finalizing it on his own.
2. If he can do so what are my claim entitlements - loss of profit(he is giving me % of the amount he finalizes as my profit), OH etc etc.

There are two contracts for the same work.... supply and works contract.

Thanks for the help.

Regards
Taran

ANSWER: Hello Taran,


Indeed, did not hear from you since long, good to hear again! Glad I could help then.

Firstly, what Conditions of Contract are you using?

Secondly, what is your contract providing in respect of omissions and loss of profit.

In case you're using FIDIC, no, that can not be taken from you and you generally have an entitlement for loss of profit.

Please have a look in your contract and try to identify provisions related to these issues.

Then see what they say and how do they suit your case.

Finally, should you still have things to clarify, please get back to me with precise details, so I can reply properly.

Remember, I can always help to clarify things, but can not fill gaps of missing information.

Good luck!

---------- FOLLOW-UP ----------

QUESTION: Thanks Florin,

Sorry to have left gaps in providing information. Trying to bridge them.

1. Contract is a made to suit one. Not following any standard forms available.

2. the contract is silent about ommissions. IT only says " THe BOQ specified may vary depending on the requirement of the owner. The contractor agrees to make purchases in execution of this contract only after obtaining a written confirmation from the owner"

3. There is no clause which talks about loss of profit. Consequential damages do have an indemnity clause mentioning that neither party is held liable towards the other for any indirect and/or consequential, incidental, prospective, remote, special or speculative damages.

Thanks for the help.

Regards
Taran

Answer
Hello Taran


Thank you for coming back.

In that case, I am afraid you have little if any option, but to be at Employer's disposal and do whatever they please.

As long as there is nothing you can clutch on, you have no chances to successfully fight the client.

Sorry I can not help more, good luck!