Construction Law/Omission of works

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Question
I'm working as a Quantity Surveyor for the Engineer to a Contract under the Yellow Book (1999). According to this Contract the Contractor has to construct a road to a length of 30 km. After the signing of the Contract and for some reasons, 3 km don't need to be constructed because they were already constructed  by a local contractor on behalf of the responsible municipality, where this section is being. Is this issue being included with the case which a Variation shall not comprise the omission of any work which is to be carried out by others, as exactly being described in Sub-Clause 13.1 of the Yellow Book. And if this happens, must become a deduction of the Contract amount and with which way ?

Answer
Dear Konstantinos,


Thank you for your question.

Though simple question, the answer is quite complex.

In analysing that, one must know what was the situation at the time of tendering: was it in any possible way, known to the Tenderers that respective road sector, was already built, or about to be built by others?

Because that changes the entire prospective over the matter and in absence of that information and eventual other relevant details, I shall try below to explore some possibilities, for you to develop later on.

If yes, then probably, Contractor can say that respective sector wasn't in fact part of the Tender Dossier and his Offer, including tendered price, are only for the rest of the road.

If not, it is to be analysed if it was the Employer that arranged for that sector to be built, or someone else.

In any case, I would suggest the Contractor seeks to receive loss of profit.

Please analyse these hints and come back to me with further details - but please note I shall not be available over the next week.

Good luck!

Construction Law

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Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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