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Construction Law/Discrepancies between the architectural and Structural drawings

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Question
QUESTION: Dear Sir,

I would like to ask you to clarify the following according to FIDIC 1999 Red book:

we are now as contracting company executing a project this project is divided into three sections phases and each phase is having its own start and completion dated with delay damages.... may the above information are irrelevant little from the question but it is for clarity about the duration.
Phase 3 works are comprising of demolition and concrete breakout for a strip in the existing wharf deck slab with certain dimensions and depths then providing new steel reinforcement and perform concrete reinstatement for the deck slab to prepare that part of the slab and the beam structurally to carry the loads of new crane rail.
now my question is after we commence with phase 3 works (started after 19 months from the commencement of the project) we discovered the following discrepancy :
in the general setting out drawings and architectural sections are showing the width of the demolition strip as of 6.5m by mentioning the extent of the concrete breakout . while in the structural drawings in the relevant sections illustrating the concrete breakout and the additional steel to be provided we found the following information:

the extent of the concrete breakout is 6.50m
at one structural section the Engineer is mentioning that the distance to the right of the demolition strip centerline 3.45m and from the left side 3.05m (the total of both dimensions is 6.5m)
in another structural section the left and right dimension at shown as " minimum 3.45m" and this means that the extent of the concrete breakout at minimum 6900mm while in all the drawings " the extent of the concrete breakout is 6500mm".

now we approached the consultant and issued a Request For Information (RFI)to ask whether the right and left are equal 3.45m to give total 6.9m or detail the correct right and left distances to give a total extent 6.5m .  The Engineer responded that due to structural requirements the total width is 6.9m that is more by 40cm and revised 10 drawings according to this new information.

we raised a claim for additional cost due to the 0.4m along the 140m (the length of the strip) the Engineer rejected the claim because the contractor has not notified the Employer/Engineer within 28 days (Clause 20.1) from the beginning of the project.

please Clarify whether the rejection is in line with FIDIC 1999 Red Book or not

ANSWER: Dear Hazem,

Clause 20.1 of FIDIC Red Book brings a "Time Bar" to any claim of the Contractor that a notice must be served within 28 days after he became aware. the clause stipulated that "If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Employer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the contractor became aware, or (should have become aware), of the event or circumstance. If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim." Therefore, the contractor must give notice of a claim within 28 days for there to be a valid claim, so that all involved are aware that there is an event or circumstance where extra time or money may be due to the contractor.

Your only argument that you may dispute the Engineer's Rejection is the point where you became aware. You can base your awareness with the issuance of revised drawings, if you still were in the limit of 28 days.

Best Regards

IRVALI

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

QUESTION: Dear Mr. Ali,

thank you for the Clarification, but this is not what I am exactly asking for , what I am asking for is that the Engineer rejected the claim as this beyond the 28 days stated at clause 20.1 in the FIDIC 1999 and we do not find this correct since the discrepancy is their in the tender and contract drawings and the relevant drawings issued for construction were not changed from the contract drawings...... the discrepancy is that one of the dimensions representing part of the strip of the demolition/concrete breakout and then the concrete reinstatement works is not compatible or according to the Architectural drawings ,setting out plans and even the structural drawings as the drawings are stating explicitly the Extent of concrete breakout in both structural drawings and the Architectural determining the same with 6.50m while in one of the drawings at certain section related to the steel overlapping they are showing the distance from the right and the left both are the same to have 6.90m, when we requested for clarification as the Engineer is liable for the Design he revised the drawings 10 drawings to confirm that the strip shall be 6.90 instead of 6.50 then we claimed for additional cost they rejected the same as it is beyond the 28 days that is not true .... please advise us and clarify the issue contractually

ANSWER: Dear Hazem,

Would you please provide information that if you have submitted your claim 28 days after the Engineer submitted revised drawings or not ?

Best Regards,

IRVALI

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

QUESTION: Dear Mr. Ali,

Correct within the 28 days we have notified the Engineer after we received the revised drawings then the particulars of the Claim. But the Engineer is saying the 28 days shall be from the time of issuing the for construction drawings at the beginning of the project not after we become aware ....... bearing in mind that it is clear in all of the drawings the Arcitectural, setting out and the structural drawings and sections that the extent of the works included in the contract is 6500mm while we as a contractor we found at one section structural the summation of the detailed dimensions is equal to 6900mm not 6500mm ; therefore we request for clarification since the Engineer is the designer and liable and the Engineer accordingly revised 10 drawings to have 6900mm total in lieu of 6500mm

Answer
Dear Hazem,

Now you have a case that you can dispute the Engineer's Decision. The Contract clause is clear and the date you became aware might be issuance of the revised drawings, therefore you can press for your position. I think that your argument is strong to defend.

Best Regards,

IRVALI

Construction Law

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ALI IRVALI

Expertise

FIDIC, Arbitration Procedures, Claim Management, Project Management.

Experience

I have experience of working at 6 countries in MENA region (algeria, Libya, Saudi Arabia, Oman, Pakistan)as the Regional Director and General Manager of a construction company. I have experience on various applications of FIDIC and construction law, arbitration procedures, claim management, project management.

Organizations
CEO of TURCON Construction presently. www.turcon.com.pk

Education/Credentials
M.S. Civil Engineer, Various Courses on Project Management, Seminars on FIDIC.

Past/Present Clients
National Highway Authorities of various countries, Water and Power Development Authorities, Karachi Port Trust, etc.

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