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QUESTION: Dear Sir

You have always been a big help. Kindly let me have your expert advice as usual on the following four issues.

1. The Contract Specification states that Division 5400 should be replaced but that has not been stated by what. The Employer is of the opinion that Division 5400 is still the appropriate Tech Specification applicable to the Contract. Is that correct?

2. The Employer has give access to and possession of Site, but the Part of the Site possession of which was said to have been given was not free from obstruction.  Would it be ironic if the Employer attempts to enforce that time is of essence stipulation under the Contract when he is yet to fulfill his mandatory obligation of granting access to and possession of all parts of the Site.

3. What contractual basis exists for the Contractor to mitigate delay?

4. The Consultant/Engineer for the Contract made a determination on the Contractor’s claim, but then was replaced by new Consultant/Engineer. The Contractor resubmitted the Claim for the new Consultant/Engineer combining with other claims.

Is there any contractual basis for the new Consultant/Engineer to review/reevaluate the Contractor’s claim and make a determination?  

Kindly be informed that the Contract is based on FIDIC Multilateral Development Bank Harmonized Edition June 2010

I am deeply indebted in advance.

Alemu

ANSWER: Hello Alemmu,


Welcome back, glad to hear again from you. Thank you for your new question and apologise for my late answer. There is something wrong, as I do not receive the notification emails, until All Experts send me one, saying I am late ...

Apologise once again for that, though it is not me.

To answer your queries:

1. If you did not know with what to replace Division 5400 (whatever that is), how did you priced the item?! Why did you not requested a clarification at the tendering time.

Regretfully, now you have to replace that Division 5400, but you must agree with the Employer with what.

Your question is somewhat unclear, please come back with some details. What do you mean by "Division 5400 is still the appropriate Tech Specification applicable to the Contract"?

2. Employer must provide the land free of any charges, not occupied by anything, etc, so that Contractor can enter it immediately.

If that was not the case, you should have claimed for it.

3. Which delay? Related to land that was not free? If yes, please see answer above.

If no, please clarify what are you thinking of.

4. Firstly, why did you submit another claim?! You should have stuck with it and let the new Engineer handle it.

But yes, the new Engineer must handle your claims, as if there was no Engineers' swap.


Trust that answer your queries, if anything left, please come back. And eventually have patience, in case I shall not get in time the notification emails.

Good luck!


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

QUESTION: Dear Florin,

As usual, I am deeply indebted to your expert advice. I wish to provide further details in item-wise manner.

1. Division 5400 is the Standard Technical Specification for which no special provision was made although the Standard Technical Specification stated that it was replaced.

2. No more question

3. The delay I mentioned was referring to the one that was caused by a Variation. You know what happened was that the masonry retaining wall quantity increased significantly and is to cause significant delay. But if the Contractor simply increases the number of crews and the daily output, the additional time required would decrease significantly. kindly note that this activity mainly involves labour. Would requesting the Contractor to do so have any implication?

4. once the Engineer made a determination, is it not the Dispute Review Board that should review it?

Many thanks in advance.

Alemu

Answer
Hello Alemu,


Welcome back, thanks for the nice ratings - seems the notification email arrived in time now.

1. Don't think I can add more, it seems you have to do some work, which I to be defined with the Employer.

Will be a main problem if you can stick with the price you tendered for that specific item.

2. Nothing else

3. If the delay is attributable to you, you are responsible to mitigate it, including for related costs. If you don't succeed, you'll pay delay damages.

But if the delay is attributable to the Employer, there are two options:

a) you get an Extension of Time and you can claim for related compensation, for longer mobilization

b) you are instructed to accelerate and work more/ harder (whatever specific activity is considered best) and are paid for related supplementary costs.

4. Yes, once a Determination issued by the Engineer, it can only be reviewed under Clause 20.

Unless and until it reviewed like that, it is mandatory for the Parties.

But it is Disputes ADJUDICATION Board. DAB, not DRB.

Trust that answer your queries, good luck!  

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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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