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Construction Law/Physical Conditions - Unforeseeable

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Question
Hi Florin,

We are maincon, with FIDIC 2010 MDB.

We constructed berth foundation using blocks.  We installed stone as foundation of our blocks.  However, silt (silty clay, mud), invaded our stone foundation.  During blocks installation, as load is applied, our stone foundation displaced due to presence of silt between gaps of stones.

We only found the presence of silt (we considered it vicious) between gaps of stone after we removed the blocks.

Question:  Under Sub-Clause 4.12, could we consider silt as Physical Condition, say pollutants?

Answer
Dear Dani,


Thank you for your question.

If you're using MDB 2010, I suspect the design has been made by the Employer, hence it is their responsibility for not having properly investigated the foundation ground.

You have two options:

- 4.12, as you suggested, or,

- 1.9: notify the Engineer and ask for immediate instruction. Then, whatever comes aut of it may turn into a Variation, with due consequences for time and money.

Suggest you analyse your actual situation, Technical Specifications and Particular Conditions and make a decision on which option to choose.

Good luck!

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Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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