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Construction Law/claim under fidic redbook 4.12 unforeseeable pysical condition

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Question
i am working on a project construction a sewerage treatment plant in malaysia. the project involves reclaiming oxidation ponds and constructing a modern sewerage treatment plant over it.

in my country, site investigation (si) reports are provided during the tender stage. however, in the contract documents, a clause is usually included whereby, the site investigation report is for information only, and does not constitute as part of the contract documents.

we have used this report to design the temporary works (sheetpiled cofferdam with jacked-in anchors for support). the system is used as the si report indicates that sandy silt material is below ground. however upon commencement of works, the support system failed. upon conducting further si at our own cost, it was discovered that the ground below was extremely soft clay.

now, we have two problems delaying the job.

i. delay due to excavation works in soft ground
ii. delay due to additional anchors required to support the sheetpiled wall

as a result of the si conducted by us, the consultant reinstated piling works for the structure here which they have omitted during the beginning of the project (piling was initially included in the tender drawings). this has also created additional delay (imagine piling using an iph machine on extremely soft clay).

we have tried to claim for extention of time due to unforeseen ground condition. the consultant argued that as an experienced builder, we should have foreseen that the location could have soft clay. furthermore, we were taking risk that the si report provided by them is accurate.

could you please provide any ideas on how to counter the consultants arguments. your comments are highly appreciated. (for your information, the contract used is fidic contract)

Answer
Dear chamara,

 Fidic specify this condition as unforeseen by an EXPERIENCED Contractor. Therefore you shall prove that you are experienced enough, to be very straight to the point.

  1. The existing si report is an evidence but it is not part of Contract.
  2. Pilling was in the Contract and omitted by consultant as you mentioned, so we can say that the consultant was not experienced enough to foresee site conditions. You may use this argument in a contractual manner.
  3. You shall check existing city site condition reports from local authorities and may have a good argument that this site condition could not be foreseen
  4. If the city conditions does not support you, you shall check areas around your site and conditions there or similar constructions and their site conditions. They may support your argument.

Here the critical issue is to prove that you are experienced and made investigation for site condition what they may be and follow the existing si report.

Regards  

Construction Law

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