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Construction Law/Design Defect Responsibilty


QUESTION: Dear Peter M. Elliott,

I am working for a building project in UAE as Sr. QS with Consultant (Engineer). The project is a lump sum contract, 90% of structural works have been completed. Suddenly we found that there are leaks in basement-2 slab due to ground water level condition rise (the basement was flooded with water, dewatering has been done on as a temporary solution). We as an Engineer issued a NCN to Contractor for rectification of this work. But the Contractor rejected the NCN on the basis that it is an Unforeseeable Physical Condition (G.C - 4.12).

On the other hand Client doesn't accepting to pay for rectification Works and holding the Contractors payment, consequently the Contractor reduced his workforce the issue is on dispute. I have been asked to find options for amicable solution for this issue.

During pre-contract stage, Contractor have proposed structural value engineering for cost saving purpose and the Client accepted as it is Cost saving exercise. Then Contractor has agreed to redesign the structural part of the project for certain amount of money and did the re-design. The building has got two basements and five floors above.

General Conditions of the Contract - FIDIC 99 Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer.

Lump sum Contract.

IFC drawing (structural/architectural/MEP) included in Contract document.

Geo-technical investigation included in Contract document.

Please provide me your advice or options on which I can do my research. I would appreciate if you could reply at your earliest.


ANSWER: Dear Mohamed,

The first question is why is there water in the basement? Is it due to high ground water?  Has the level of ground water changed from the information in the geological report? Should the basement have been made waterproof?  Is the water entering through cracks or holes? How much water is coming in?  Why was the flooding not discovered until recently?  Was the original design waterproof?  Did the value engineering remove the waterproofing?  Those questions are just for starters and the answers will open up other lines of enquiry.  

and the second question is who is responsible?  The answer to this questions follows from the answers to the above questions.

In the meantime, the Employer should not delay payment of properly certified certificates.

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

QUESTION: Thanks Elliot,

Please find below details for the questions.

why is there water in the basement? ground water level raise
Is it due to high ground water?  yes
Has the level of ground water changed from the information in the geological report? Yes, it was +8.2m to +9.7m now it gone upto +10.75m in some places.
Should the basement have been made waterproof? yes
Is the water entering through cracks or holes? cracks
How much water is coming in? donít know the flow rate but some area were flooded and then water removed from the site and now there is a dewatering system to government drainage system.
Why was the flooding not discovered until recently? After water leak only found  
Was the original design waterproof?  yes
Did the value engineering remove the waterproofing?  no


OK Mohamed,

Is the waterproofing compliant?  Why is the concrete cracking?

It would appear to be an Employer's risk event, as the ground water has varied since the tender was made.  Also it is possible that the waterproofing is not adequate for the situation.  If there was ground water, then one would expect the basement walls to be designed as water resistant, even if they cracked a little, as all concrete does.  It all has to do with the thickness of the walls, and the size and spacing of the reinforcement.  You could ask the designer for his comments.  It is likely that you will be chasing him for the cost of remedial work, if his design is faulty.  Research hydrophylic and hydrophobic grouts to see which would be more appropriate to your problem.  The cheapest solution might be to install a pump in the lowest basement.  Alternatively, you could apply a waterproof coating to the inside of the basements.  You would have to look at the relative costs and then decide.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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