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Construction Law/Base Course material


Dear Sir, my question is related to the Engineers intension to deduct a certain %age form the BoQ unit price for road base course material, if the specified requirements are not met from the material available at site, thought tested for long time by the Contractor.
The Contactor has processed the raw material from the contractually designated borrow areas to prepare the base course material to be used in the construction of dam crest road. All other specified limits/parameters have been met, except the Organic matter content, when tested in the contractors site laboratory.
The Technical Specifications stipulate this limit to be less than 0.1%, but the results achieved at Site from the material tested are 1.9% (higher than the specifications). Now the Engineer intends to reduce the BoQ unit price by 50% for this non-compliance of the technical specifications.
The Contractor does not agree and insists on full payment.
MY question is:
1. does the Engineer has the contractual basis to reduce this rate for this non-compliance in respect of the organic matter content, though we have used the raw material from the designated borrow areas as shown in the tender documents and then processed in the processing plant?. These designated areas are shown on the tender drawing and the tender drawings being part of the Contact. The Contractor cannot search other borrow areas to satisfy the technical requirements, which may involve extra cost.
3. the Engineer may stick to the contract interpretation and may argue that the Contractor should have satisfied himself before signing the Contract; the Contract comprising of the Technical Specifications, showing the technical specifications requirements for base-course material as well.  The Engineer may state that the Contractor should therefore bear this cost by way of a reduced payment for this material.  
2. If the Engineer still insists and if the Contractor compromises, then what should be the % weightage of the organic matter component, to be considered for such deductions from the BoQ unit price, if the specified requirements for the base course material are as follows:
1. gradation, 2. Dry density, 3. Plasticity 4. California Bearing ratio 5. Los Angeles Abrasion 6. Organic matter component
Please note that except Organic matter content, all other requirement shave been met, when processed material was tested in laboratory.
Also advise me what should be the criterion, while determining any such % weightage of the Organic matter content for deductions from payment. Shall this % weightage of the organic matter content in the base material be on the basis of its negative effects on the life of the road structure or some other considerations?.
Waiting for your valuable response. Regards   l

Hi Mohamed
You will need expert advice from an engineering expert to tell you to what degree the small increase of organic material will have on the top road performance - get this privately and only disclose it if it is in your favour.
If it has a profound effect then the project engineer is in his rights to require complete removal and replacement.
I think he is bluffing you to take the reduction without a challenge - if it was a real problem he would want it all replaced.
The problem with organic material is that it rots and degrades the density of the fill.
An alternative is to put some dense capping on top to stop the weather getting in.
Your Expert will advise but he has to be independent.
Best regards
Mike Testro

Construction Law

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Mike Testro


Anything related to extensions of time and delay analysis.


45 years in the Construction Industry 15 Years as a consultant delay analyst - I now hold myself to be expert in this field.

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Currently employed in India by Punj Lloyd as expert delay analyst. Engaged in ongoing arbitrations and EoT claims. Prior an Indepenent consultant in delay analysis.

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