Construction Law/Claims

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Question
QUESTION: Hi,

Just would like to know the expert's view on this particular issue we have with the client. Our contract is a "build only" contract. However, i am fully aware that although it is "build only" as a contractor, i still have the responsibility to design for my temporary works. However, in this particular contract, it has been specifically mentioned that the design for the particular temporary work would be provided by the client's designer. Being a temporary work, at the end of the day, it has to be removed. However, the design for the removal (which could be complex) was not provided to us, the contractor. In this case, the client REQUIRED us to submit our method statement including PE (professional engineer) calculation.We insisted that a method statement would not be possible without a design. With this, the client stood firm with their decision that no further details or drawings would be issued to us and warned us that if we do not submit as REQUIRED, we shall liable for any delays to the Works. But as a contractor, we are relying on the fact that the information required to complete the works was not given or issued in due time.

In your view, do we have a case here? Does the word "require" tantamount to "instruction" or "variation order"?

ANSWER: Hi Vicky,

You did not mention the form of contract you are using, thus my answer will be general in nature.

If there is a specific provision in the contract that the design of this temporary work shall be the responsibility of the Employer/Client or his Consultants, it is therefore reasonable to provide drawings/documents to the Contractor (upon his request) for the Contractor to proceed with the preparation of Method Statement and to maintain, execute and remove the temporary works.

I suggest you to request the Employer/Client for the issuance of necessary drawings/documents regarding this temporary works and mention in your request the time to which the drawings/documents should be issued, failure or delay in issuance may lead to your entitlement to additional cost and/or time.

Submit a notice of claim and later submit your detailed claim for the cost incurred or to be incurred due to this event. This may include : Field Investigation Fee, Professional Fee, Design Fee, Documents Fee etc. etc., you may add any other additional cost depending on your actual situation.

In addition, you should check your actual Schedule and verify if this caused any delay to completion of works, if so, you can submit a separate claim notice for extension of time.

I hope the above helps and Good Luck!

I am in Singapore at present and you may contact me at 9335 3220 for any other immediate queries you may have.

Regards,

Jonathan L. Peralta

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

QUESTION: Thank you for your reply.

Of course we have done all that you have suggested. The question now is, do you think we have a strong ground for this matter? Is the word "require" tantamount to "instruction" or "variation order"?

Answer
Hi Vicky,

Yes you have a strong ground for this claim provided you conform to the claims mechanism as stated in your contract.

Depending on the exact wording and conditions of your contract particularly "changes clause"  the word "require" is tantamount to instruction.

Not all Variation Order have cost and/or time impact and not all "Instructions" can give rise to a claim.


Regards,

Jonathan Peralta

Construction Law

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Jonathan L. Peralta

Expertise

Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.

Experience

Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

Organizations
AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Education/Credentials
Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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