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Construction Law/Inclusiveness of Day Rates of Supervision Staff

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QUESTION: Dear John,
I am working in a project governed by a Lump sum contract, my company is Subcontractor for Construction and there is a Main EPIC Contractor who is doing the E, P & Commissioning.
My question is, despite the "No interparty claims" as well as various protective clauses with respect to engineering & procurement delays & faults, we have a mechanism for additional works which has unit rates and Day rates to evaluate the same, however, in the description of “Construction personnel Day Rates” and “Equipment Day rates” in the Subcontract the below is stated:
"The rates for labour shall include for the cost of wages, accommodation, messing, all
insurance required in the General Conditions of Subcontract, all indemnities and
additional payments required under any laws, resolutions or orders of the State of Qatar
relating to the employment of labour, recruiting, transport and repatriation of expatriate
labour, transporting labour to and around the construction site, site supervision and staff
(including but not Limited to engineers, site agent management, head of office
management, general foremen, other foremen and charge hands, timekeepers, surveyors
and clerks), small tools (including but not limited to picks, shovels, barrows, trowels
ladders, hand saws, buckets, chisels, screwdrivers, hand-held instruments and all items of
a like nature), head office and other overhead charges and profit, and other costs and
charges not specifically detailed above but are required for Subcontractor to undertake
the work."
The reference table for Manpower in the Subcontract includes Foreman, Charge Hands, Operators etc., however, the client deducts the same on the grounds that they are included in the rate as described above.
Please advise if there is a justifiable basis for Subcontractor to claim those trades other than the fact that they are mentioned in the reference table, which the Contractor justify by answering that those are mentioned in case we request manpower supply.
Further, only based on the above,what is the legitimacy of this issue if introduced in Arbitration?
You feedback is appreciated in advance.
Regards,
Hytham

ANSWER: Dear Hytham,

Thank you for this question.

There appears to be an anomaly between the description of items deemed included and the schedule of resources. In such circumstances in common law jurisdictions it is usual for the person who drafted the document to carry the burden of the error. In you case, if this doctrine applies under Qatari law, the Main Contractor, if it drafted the documents, should pay you time for the operatives scheduled.



I hope that this assists you.

Kind regards,
John Dowse


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

QUESTION: Dear John,

This is very interesting!

However, I need to have reference for such principle (The drafter is responsible for paying such costs resulting from contradicting clauses and/or guidelines).

This will be very helpful, further, please advise how this can be justified in front of a court that is not based on the common law, whereas, as you might be aware, in Qatar it is the civil law that applies.

Thank you in advance.

Regards,
Hytham

Answer
Dear Hytham,

Thank you for this question.

THe principle I referred to is known as "contra proferentem". If you perform an internet search (for example through Google) you will find many articles. Once you have some background knowledge on the subject I will be pleased to answer any queries you have.

In relation to the provision under the laws of Qatar, on the research I have done I find that Article 170 of the civil code is very similar. The distinction with the position under English law, where ambiguity will always be construed against the drafter, is that in Qatar, ambiguity can be construed against either party, dependant on which party owes the obligation under the relevant provision.

I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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