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Question
The project is based on Fidic 1999, lump sum contract with the following particular condition:-
“Priority of documents clause is deleted and new clause inserted stating that in the event of any discrepancy between the drawings and the description in the BOQ and/or specification same shall be referred to the Engineer. The Engineer shall have the right to choose between these. If in the opinion of the Engineer the more stringent shall govern then the Contractor shall be obliged to comply with at no extra cost”.
Kindly advise on the following:-
1)     Is the above clause in contrary to UAE civil code?
2)    The excavation for foundation is to be carried out up to the ground water table and then to be back filled with selected fill up to formation level.
  Contract says the soil report is approximate guide based on conditions existed and no guarantee for the accuracy and no responsibility is assumed by the employer/Engineer. The water table was at 2.8 meter below existing ground level as per the soil report.
During the execution, ground water table is found at 1.8 meter level and accordingly the Engineer revised the drawings, with the reduced depth of excavation and backfilling as per the water table at time of execution.
The Engineer’s view - The work of excavation/back filling is reduced by 1 meter and it is negative variation.
Contractor’s view - The risk related to the soil report/ground water table was put on the Contractor and therefore in case of benefit for the same it cannot be passed on to client. There is no reduction in the intended original scope.
3)    Filling below grade slab - The specs shows with excavated selected fill, whereas the BOQ description is for filling with road base.
  Engineer’s view - Excavated selected fill acceptable but with cost saving to client.
  Contractor’s view - The discrepancy clause is to protect the client against any claim for the extra cost by the contractor incase more stringent requirement is to be followed/governs and not for the reduction to the contract price. Filling carried out with excavated selected fill as per specs and approval therefore deduction is not justified.
4)        Waterproofing for substructure (footing, neck columns, tie beam)
a)   The specification calls for 2 layer of SBS membrane
b)   Typical drawing shows 2 coats of bitumen paint
c)   BOQ states 1 layer of bitumen membrane
Engineer’s Instruction - To replace the single layer of SBS membrane (described in BOQ) with 2 coats of bitumen paint with cost saving to client.
Contractor’s view: - The two coat bitumen paint is in the drawing and acceptable to Engineer and therefore it is not replacing but choosing appropriate from the various given in the contract (discrepancy clause is not for reduction to the contract price).
5)         Shoring for excavation for foundations
General specification is given for shoring and contractor is responsible for stability of sides of all excavation.
There is a item for shoring in BOQ and contractor has priced.
Contractor carried out open excavation and completed the works, approved by Engineer and there was no need for any special shoring to be carried out.
Engineer’s view: - The money for shoring in BOQ is not payable as it was not carried out.
Contractor’s view: - Deduction is not justified as shoring is only to facilitate the construction and there is no change in scope of work.
Further not executing the shoring work is purely contractors risk, how the benefit can be passed on to client.
6)    Internal Block work
BOQ description is for thermalite blocks.
Specification clearly states the use of standard concrete hollow blocks and the work executed accordingly and approved by Engineer.
Engineer’s view: - No objection to use standard hollow blocks but with cost saving to client.
Contractor’s view: - The discrepancy clause is to protect the client against any claim for the extra cost by the contractor incase more stringent requirement is to be followed/governs and not for the reduction to the contract price.
Regards
Girdhar Gopal

Answer
Dear gg,

1. The Priority of documents in the FIDIC (to the best of my knowledge) is not in UAE civil code. UAE civil code is a law of the UAE administering the commercial / contract transactions within UAE and it regulates all other conditions of contract and ensure that, all of them complies with this law while the Priority of documents administers a particular contracts and the contents may vary from contracts to contracts. It only confirms the superiority of one documents (being part of the contract documents) over another where there are conflicts or discrepancies. I am sure, UAE civil code recognises all contracts including their contract documents and provisions and such provisions would be enforceable except where they are at conflict with the laws of the land - UAE civil code in this case.
2. Yes, your thinking is logical but unfortunately may not be able to be supported contractually, because, the excavation work which has been approved as per the actual execution (which would be documented with shop drawings and as-built drawings) would be based on 1.8m depth and not 2.8m depth describe in the contracts -  (either by the drawings, specs or whatever) - particularly if your contract is a lump sum type. The best description of this circumstance would be that "a variation has occurred in the depth of excavation which ofcourse will affect backfill....etc(as per clause 51 of FIDIC, depending on the CoPA. One other important action the contractor should have done is to point out the need to go as far as 2.8m since the soil report say so giving possible exception that, the difference in the water table may have been a temporal one and superficial in nature and may be because of the particular time of the year. The Contract should have also pointed out that; he does not guarantee the accuracy of the water table of 1.8m as the correct permanent water table reading at the peak time of the year. Doing this will enable him to issue a letter of indemnification, that, he would only indemnify the employer against any losses as a result of the apparent use of the "temporary" water table reading for the execution of the works, if he would be paid based on the 2.8m otherwise, he can request that, the employer issue him indemnity for such works against any anticipated or eventual default that may result to losses. On the basis of the contractor giving this indemnity (aforesaid) for the 1.8m used, then, the contractor can be entitled to the full payment of based on the 2.8m depth excavation.
3. For the filling materials; The Engineer is in error by asking you to give cost savings for executing the work using the selected excavated materials (mentioned in the contract) against the Road base material also mentioned in the contract. I can tell you that, since both specification or description for the works are mentioned under the contract, either of them are both valid to be used without any change in contract sum whether for additional costs or for cost savings. The contract is to be understood that both parties have contracted to use either of the materials described or mentioned under the contract for waterproofing without it being a variation under the contract and similarly, within the same contract price. Perhaps the only omission you may have made (i am just guessing) is if you executed the works with selected excavated materials without getting clarifications from the Engineer, then, if it is after executing with the selected excavated materials, then the Engineer can say, yeah, his decision is for you to do the filling works with Road base materials and then, he may (threatening)request you to remove the selected excavated filling knowing that, you would use the opportunity to negotiate with him and he would then request you to give cost savings. But if you have duly clarified from the Engineer prior to executing the work with the selected excavated materials, then, you can reject the Engineer's decision and follow the contractual recourse.
4. The Engineer is in error by asking you to give cost savings for executing the bitumen paint (mentioned in the contract) against the 1 layer of SBS membrane also mentioned in the contract. I can tell you that, since both specification or description for the works are mentioned under the contract, they are both valid to be used without any change in contract sum whether for additional costs or for cost savings. The contract is to be understood that both parties have contracted to use either of the materials described or mentioned under the contract for waterproofing without it being a variation under the contract and similarly, within the same contract price. The only omission you may have made is if you executed the works without getting clarifications from the Engineer, then, if it is after executing the bitumen paint, the Engineer can say, yeah, my decision is for you to do the membrane and then, he may (threatening)request you to remove the bitumen paint knowing that, you would use the opportunity to negotiate with him and he would then request you to give cost savings. But if you have duly clarified from the Engineer prior to executing the bitumen paint, then, you can reject the Engineer's decision and follow the contractual recourse.
5. About shoring; again; the Engineer is right since you did not execute the works as per specification. Specification stated shoring which ofcourse i guess, should have been part of your method statement for the execution of the works. If the Contractor intends to take any risk for executing any part of the works in an alternative manner, he is expected to notify the Engineer - Here, i would suggest that, the Contractor should have presented a proposal for value Engineering stating that, shoring would not be used, and omitting the cost and then, add the cost of other precautions to be taken and the cost of additional risk to be taking which was not part of the insured risk. At times, the contractor can proactively, obtain separate insurance for such scope of the works to demonstrate the risk value which he is taking by not executing shoring and then, when the risk cost is analyzed in the Value Engineering proposal, he would be entitle to any cost savings on the shoring.
6.The Engineer is in error by asking you to give cost savings for executing the hollow blockwork (mentioned in the contract) against the thermalite blockwork mentioned in the contract. I can tell you that, since both specification or description for the works are mentioned under the contract, they are both valid to be used without any change in contract sum whether for additional costs or for cost savings. The contract is to be understood that both parties have contracted to use either of the materials for the blockwork without it being a variation under the contract and similarly, within the same contract price. The only omission you may have made is if you executed the works without getting clarifications from the Engineer, then, after executing it the hollow blockwork, the Engineer can say, yeah, my decision is for you to do the thermalite blockwork and then, he may require you to remove the blockwork knowing that, he would use the opportunity to negotiate with you to give cost savings. But if you have duly clarified from the Engineer prior to executing the hollow blockwork, then, you can reject the Engineer's decision and follow the contractual recourse.

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