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Construction Law/Extra work/extension of time/claim for additional money

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Question
Dear Sir,
please draw your attention to this situation. The contractor is building a road under FIDIC 2006 however the subcontract is a non-fidic one. As of today we are facing some extra work not accounted in BOQ and unaccounted in the initial design. What shall we do in this case, shall we initiate a Variation order, should we request a clear contractor's instruction to perform these works, shall we ask reimbursement for extra work and extension of time for completion. We had asked them to guarantee of payment for the extra work, the contractor replied saying that the works would be paid in accordance with the contract.
Thank you.

Answer
Dear Qalandar

Thanks for the question. I am sorry for the late response. Although the main contractor is working through FIDIC 2006, yet your subcontract shall be governed by the contract which you entered into with the main Contractor. Please check the payment clause to see the provision therein. The payment is back to back or you have your own BOQ to follow. If the payment is back to back then you will get only that item for which the contractor will be paid. In the other case you will be paid for the BOQ in your contract.

In both the cases, you need to obtain an instruction or a Variation Order from the main contractor for carrying out any other work not covered under your contract, clearly stating the nature of work to be done, the time allowed and the method of payment. In absence of such a document you may end up doing all the work without any compensation. The plea of the main contractor will be that he was also not paid by the Employer. Please note that unless you have such an instruction or a V.O, you will end up without compensation in most of the cases.

I hope the question is answered.

Regards

Abdul Majid Khan

Construction Law

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Abdul Majid Khan

Expertise

I am interested in questions related to time Extension, Liquidated Damages,variations, price adjustments,payments, disputes and Dispute Board under FIDIC IV, FIDIC 1999 and FIDIC 2006 Harmonized Documents.

Experience

I have been heading the Construction Management Division and Contract Divisions of National Engineering Services Pakistan (PVT) Limited, NESPAK, the largest Consulting Engineering Firm in Pakistan, for more than seven years and two years respectively. I have also worked as "The Engineer" on a number of projects. I have been working in Saudi Arabia for about seven years on a road projects. Additionally I worked as Arbitrator and am member of few Dispute Boards in individual capacity on Asian Development Bank funded projects.

Organizations
Inland and in Middle East. I have worked with National Engineering Services Pakistan (Pvt) Limited (NESPAK)as my Employer for more than 27 years in Pakistan. In Saudi Arabia I worked for Rashid Engineering, Consulting Engineers during 80s. After retirement I provided advisory services to NESPAK on technical and contractual matters to its various divisions and lately I was appointed as Advisor to Managing Director NESPAK on Technical and Contractual matters. Currently I work as Free Lance Contract Specialist on Fidic Form of Contracts.

Education/Credentials
I am a graduate with a B.E (Civil Engineering) degree. My year of graduation is 1970.

Awards and Honors
A few appreciation Letters and Honorariums during my service in NESPAK. I remained member of Administrative Committee and Board of Management of NESPAK. I had been part of the Management Committee in the absence of Managing Director.

Past/Present Clients
Most of the Clients used to be Government Departments, Corporations and Authorities. In Saudi Arabia the Client was Ministry of Communications. As Arbitrator and Dispute Board (DB) member, I provide services to various Government Departments and Contractors.

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