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Construction Law/Specifications-Ambiguity

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QUESTION: Dear Femi,

Hope you are doing fine.

It has been so long since my question last time.

My question today relates to an ambiguity in Specifications of the ROOFING MATERIAL. The project is for the construction of warehouses. It is also a LUMP SUM CONTRACT. The matter has become an issue between the Main Contractor and the Sub-Contractor. The Specifications in the relevant part say as follows:

The work and design consists of:-

Truss – Steel structure truss, beam and purlin.
Wall cladding is required from ground up to roof
Wall panel is metal polyurethane insulated sandwich panel with thickness of 5cm
Roof panel is metal polyurethane insulated sandwich panel with thickness of 5cm
Wind bracing
Insulation only sandwich panel [Fiber glass 50mm thick 10kg/m3]

The Main Contractor required and instructed that roofing material should be sandwich panel type.

The Sub-Contractor says that roofing material should be single sheet with fiber glass insulation, as the Specification says that “Insulation only sandwich panel", the type of insulation being specified further as: Fiber glass 50mm thick 10kg/m3. One of the suppliers said that Polyurethane core density has a minimum density of 35 to 40 kg/m3. Therefore, any supplier will understand to quote for single sheet panel with 50mm thick.

The Main Contractor instructed the Sub-Contractor to continue with sandwich panel type of the roofing, otherwise he intimated that the Sub-Contractor will be in breach of contract and without further notice he will consider by non-performance that the Sub-Contractor has declared the cease of the contractual relationship.

By the way, for the same Employer, two warehouses were built with the same Specifications and the construction being undertaken as the Sub-Contractor submits now. At the time of tendering, the Sub-Contractor was also advised orally to visit these previously warehouses.

Which one do you think is correct {the Main Contractor or the Sub-Contractor]?

If the Sub-Contractor is correct, what can he do now [simply to continue as the Main Contractor instructed considering the same as a change order and requesting for Change Order while also notifying his intention to claim for additional cost and/or time?

Being deeply indebted in advance to hearing your expert advice, as usual of course, I remain

Alemu

ANSWER: Dear Alemu,

Thank you for your question.

I hope i got your question right? In my view, firstly, I do not know the type of the Subcontractor, whether it is NSC or domestic (initiated by MC and just working for the Contractor)? Whatever, I will advise that the design and specification must be complied with in all respect and should there be any doubt or discrepancies or ambiguity, the Engineer should be able to address this. Having said this, I am aware that, the Subcontractor must always take instruction from the Main Contractor and should there be any additional cost as a result of the Main Contractor clarification to the Subcontractor on the ambiguity, then, the Subcontractor can ask for his entitlement.

I am sure clarification of the ambiguity will be the only way to proceed in this situation.

Regards

Femi

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

QUESTION: Dear Femi,

Once more, I am greatly thankful to your expert advice dated May 8, 2016. My question today is a continuation of it. As you clearly advised me earlier, clarification of the ambiguity will be the only way to proceed in this situation. Yet, I still know very well that you will help me.

I would thus appreciate if you advise me your interpretation of the doubt or discrepancies or ambiguity in the Specifications. The Specifications in the relevant part say as follows:

The work and design consists of:-

   Wall panel is metal polyurethane insulated sandwich panel with thickness of 5cm
   Roof panel is metal polyurethane insulated sandwich panel with thickness of 5cm
   Wind bracing
   Insulation only sandwich panel [Fiber glass 50mm thick 10kg/m3]

My question relates to the type of ROOFING MATERIAL. The project is for the construction of warehouses. It is also a LUMP SUM CONTRACT. The matter has become an issue between the Main Contractor and the Sub-Contractor. The type of the Subcontractor is domestic (initiated by Main Contractor and just the Subcontractor working for it).

The Main Contractor required [based on the Engineer’s/Client’s interpretations]and instructed that roofing material should be sandwich panel type.

On the other hand, the Sub-Contractor says that roofing material should be single sheet with fiber glass insulation, as the Specification says that “Insulation only sandwich panel", the type of insulation being specified further as: Fiber glass 50mm thick 10kg/m3. By the way, one of the suppliers to the Sub-Contractor said that “Polyurethane core density has a minimum density of 35 to 40 kg/m3. Therefore, any supplier will understand to quote for single sheet panel with 50mm thick.”

In addition, for the same Employer, two warehouses were built with the same Specifications and the construction being undertaken as the Sub-Contractor submits now. At the time of tendering, the Sub-Contractor was also advised orally to visit these previously warehouses.

1.   Which interpretation do you think is correct [the Main Contractor’s or the Sub-Contractor’s]?

2.   What about the relevance of the fact that “for the same Employer, two warehouses were built with the same Specifications and the construction being undertaken as the Sub-Contractor submits now. At the time of tendering, the Sub-Contractor was also advised orally to visit these previously warehouses.”

As usual, I am deeply indebted in advance to receiving your expert advice.

Alemu

Answer
Dear Alemu,

Thanks once again for your question.

Let me be honest with you, the correct clarification will be determined by the standard specification of the material specified. If the materials being referred to under the Specification is readily availability in the market in the form the contract specified, then, it means the specification is correct. if not, then, it is a different story entirely.

For example, by trying to understand and describing (through the knowledge of the property of materials and insulated roof panel, i can let you know that: The correct interpretation of the specification is as follows:

1. Roof panel to be of metal polyurethane.
2. The metal sheet is not intended to be single but double with insulation material in between the metal polyurethane. (This is evident by the use of the word "sandwich panel" for the roof and thickness of the insulation is 5cm)
3. The material for the insulation to be Fibre Glass 50mm thick 10kg/m3 (If there is no specification like this according to the Subcontractor and the material Fibre Glass can never be obtained as 50mm thick 10kg/m3 but only in 30-40kg/m3; then, it would be a different issue but no doubt, the roof is definitely not a single sheet but "polyethene metal sheets (both sides) with 50mm thick 10kg/m3 Fibre Glass insulation sandwich (in between) panel"


Hope its clear now?

Regards.

Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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