My Comments are given below in red fonts :-

----- Original Message ----From: Glennie

To: "Prof. Sam" <sam99@eim.ae>
Date: Mon, 09 Sep 2013 13:19:21 +0400
Subject: Question
Dear Professor,
Thanks for you knowledge sharing and guidance. I have a small issue to clarify with you. Say the Contractor has
been instructed to carry out a certain job which scope is not similar to any of the Contract items and hence we
need to go for a new rate;
However when he submits his invoices it seems to be very high compare to the price prevailed at the time of
execution.
In this scenario under FIDIC 1987 form of Contract what are the possibilities to give a fare assessment. Can we
consider the market price instead of the invoiced price saying that he failed to abide the clause 8.1 (Contractor
has to carry out the work in due care and diligence) and hence he is not entitled for the amount he is claiming.
Under FIDIC 1987, valuation of variations is governed by Clause 52, according to which the Engineer can fix
rates / prices which in his opinion are appropriate (i.e. the proper/correct rates/prices), if the two parties cannot
agree on them. Therefore, acting reasonably, the Engineer can establish the correct prices that prevailed at the
time of execution (by making inquiries from suppliers, by investigating supply prices in other projects, etc.) to fix
appropriate rates/prices.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thanking you in advance

Thanks and Regards
Glennie

----- Original Message ----From: Saman Nku

To: "Prof. Sam" <sam99@eim.ae>
Date: Wed, 11 Sep 2013 03:24:03 -0700 (PDT)
Subject: Question

Dear Prof. Sam

I'm one of Students from your Qatar class.

I have a following question pls give your valuable comments when you have time.
This is regarding working hours of Consultancy Contract. The followings is exact wording
in the Contract regarding working Hours.

"The Consultant shall provide all required staff as per the Contract during all working
hours of the Construction Contractor.
The Consultant shall take in to account the 'time for completion" and the nature of the
construction works in that it may be necessary for the Contractor to work outside normal
hours and on weekends and the Consultant shall therefore allow within the Consultant
bid costs for providing site staff to work regular, evening and / or night shift , or
weekends in addition to normal working hours as necessary.

All payroll shall be in accordance with laws of the State of Qatar. "
One Client in Qatar is asking to work 10hr per day (normal working hr) and 6 days per
week since the Contractor's timing is 7am to 5.00pm. And they intend to deduct if any
body has delay (less than 10hr per day) in daily attendance as per records taken from
time machine. As per the Contract, Biometric time machine is required for recording
attendance of all Consultancy staff and monthly payment shall be based on attendance &
service deliverable.
My opinion is that only required staff if necessary shall be work during the Contractor's
working hours otherwise all staff shall work 48hr per week as per the Labour Law.
Can the Client insist all consultancy staff to work 10hr per day and make the deduction the payment if any staff
who work more than 48hr but less than 60hr per week ?

According to the wording it is not Supervision that is required to be provided, but staff
as per the Contract, and therefore if the Contract (or consultancy agreement) clearly
stipulates the number and categories of the Consultants staff required for the project,
then the Client appears to have a valid argument that all of them should be present for
the full period that the Contractor is executing the work, and to deduct payments if they
are not. If however, the categories and numbers are not stipulated, then the Consultant
would be in a position to argue that his obligation is to provide only adequate staff for
supervision purposes (however such adequate staff should still be present for the full
period as aforementioned).

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thank you
Kind Regards
Saman

----- Original Message ----From: saleel munappil

To: "sam99@eim.ae" <sam99@eim.ae>
Date: Thu, 12 Sep 2013 15:50:05 +0800 (SGT)
Subject: Re: Latest Q&A plus important message

Dear Dr. Sam

Good Day to you. I take this opportunity to convey you my sincere thanks for
sharing your valuable time to respond to our queries. I would be really thankful if
you could provide your comments on the following:

Subject: Clarification Regarding Depth Bored. (CESMM3)

This has reference to the above subject, please correct me if I'm wrong, the
Depth Bored for Piles as per the Preamble (As shown below) is from Commencing
Surface to the Toe Level and Cutting of Surplus Length is from Commencing
Surface to the Pile Cut-off level.
Since the Preamble clearly states that the commencing surface of the depth
bored shall be taken as the cut off level, Depth Bored should be measured
from the cut off level.
Regarding the Cutting of Surplus Length, your understanding is correct (as there
is no stipulation similar to that for the Depth Bored, in this instance).
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Best Regards
Saleel.Bhaskaran
Sr. Quantity Surveyor
Bridge Works Preamble
Piling and Piling Ancillaries
The rates for bored cast-in-place shall include for boring in any material and all
necessary

operations for working below the water table for the support of the bore.
Irrespective of the
method of casting the commencing surface of the depth bored shall be
taken as the cut off level,
expressly required. Any additional depth bored shall be considered to be
attributable to the
Contractor's working method and shall not be payable. Also, the rate of
depth bores shall be
deemed to include the cost of formwork and any other work associated with
casting a part of the
pile as freestanding column.

The rates shall include for the use of temporary casings for the pile and the
oversized hole
according to the approved method statement

The rates for boring shall, unless otherwise stated, include for disposal of water
and bentonite
suspension as displaced by concrete.

The commencing surface level to be agreed with Engineer on site for each
location.

The rates for cutting off surplus length also includes disposal of material arising
to tip.

The concreted length of pile shall be measured from the cut off level, expressly
required, to the
toe level expressly required, along the axes.

The rates for vertical pile load test for non-working piles shall include for the
cost of pile and related works.

----- Original Message ----From: Nirojan Sahayaratnarajah

To: "sam99@eim.ae" <sam99@eim.ae>
Date: Sun, 01 Sep 2013 21:16:59 -0700 (PDT)
Subject: Question (Qatar)

Dear Prof. Sam

Good Morning.
Please see below my question and wish to receive your comments.
Under FIDIC 1987

Defined PS was included in the contract and it is not specialized

work and MC is also capable to do that work.

After completion of design, specification and drawings were given

to MC to price the Defined PS sum.

MC priced it and their price was 20 % more than the allocated PS.

Now employer wants to go for nomination because to get competitive

price through tendering.

In this tender employer wants to include MC also to participate.

My query is.

After get the proposal from MC can we go for nomination because of

Mcs price is more than the allocated PS? YES. Will MC object the
nomination as MC already submitted his price according to the contract? MC
has no such right.

Can we request the MC to participate in tender YES. and can MC

object to participate? YES.

Should we invite the MC to participate in tender? Optional, but

better to invite as MC may now wish to make its offer competitive. Will MC
object the nomination because of the below mentioned reasons? MC has no
such right.
MC has already submitted his price.
Employer hasn't invited the MC to participate in tender.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Kind regards,
Nirojan S
Quantity Surveyor

----- Original Message ----From: Sugumar Nandagopal

To: sam99@eim.ae
Date: Tue, 27 Aug 2013 11:02:20 +0400
Subject: Profit calculation

Dr.Sam,
Have a good day,

I would like to thank you for your service,

While calculating overheads and profit on each item, we are following the
procedure as mentioned below:
Overheads calculation on top of material and labour cost and profit
calculation on top of material, labour and overhead cost (If
client/consultant is saying profit can be claimed on material and labour
cost only not on overheads cost what we shall do, since nothing
mentioned in contract about this calculation method).
Please confirm as per FIDIC Standard, is there any written rule says that
how to calculate overheads and profit.
There is nothing mentioned in FIDIC in this regard. These matters should
ideally be agreed prior to signing the contract and included in it. Generally
in the industry OH & P are claimed as a combined element calculated as a
percentage on the basic costs. If your method is different, try to analyse
and show in the breakdown of a series of rates (if possible all rates) in the
contract, that you have used your method, and try to obtain the
agreement of Client/Consultant. If the matter ends up in a dispute, the
court or an arbitrator would (in the absence of an agreement to the
contrary) is likely to adopt the standard practice in the industry which is to
consider OH&P as a combined element calculated on the basic costs.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Kindly clarify about this working system.

Regards,
Sugumar Nandagopal
Turnkey Fitout Quantity Surveyor
050 1200186
----- Original Message ----From: Nidal Hasson
To: "Dr. Sam" <sam99@emirates.net.ae>
Cc: nidalhasson@eccgroup.ae
Date: Tue, 27 Aug 2013 08:55:29 +0400
Subject: Openings for MEP works

Good morning Dr. Sam,

I hope this email find you and your family very well.

In refurbishment projects, we found out that there are some new openings (missed from
contract drawings) of various sizes are required to accommodate MEP requirements.
Engineer have assumed that such openings are considered to be under builders work which is
within contractors scope, while our position is that such openings require demolition and some
of them require strengthening and considered this to be a variation.
Can you please let me know your opinion about the same and what is the minimum opening
size in an existing slab could be considered as builders work
If any specific method of measurement which describes in detail how to measure Builder's
Work is not mentioned in the contract, then holes of any dimension required (to accommodate
MEP work), which an experienced contractor could have foreseen when studying the tender
documents, are deemed to form part of Builder's Work. Only if the Contractor can demonstrate
that they could not be foreseen, they can be claimed as variations. If there is no design
responsibility mentioned in the contract for Builder's Work, then any specific permanent
structural supports would be variations and temporary supports are deemed to be Builder's
Work.
Only openings made for other purposes (other than accommodating MEP work) could be
considered as Demolitions and Alterations (especially when the Method of Measurement is
POMI)

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Regards,
Nidal Hassoun
Sr. Contracts Manager
----- Original Message ----From: Nayana Seneviratne
To: "sam99@eim.ae" <sam99@eim.ae>
Date: Wed, 18 Sep 2013 02:06:30 -0700 (PDT)
Subject: Engineer's Overtime and Night shift supervision fee.

.
Dear Professor,
Hope you and family keep well.
Our contract does not have provision to recover the Engineer's over time
and night shift supervision fee. Contractor is rejecting to pay engineer's
supervision fee for night shift and overtime. Night shift working

programme was proposed by the contractor in addition to the general

contract working programme.
Can the Engineer apply deduction for the above supervision fee on the
Interim Payment Certification?
If it could be demonstrated that the originally agreed Time for Completion was
adequate for an experienced Contractor to complete the Works by working during
the normal working hours, and if the Employer is not responsible for any delays, then
the Contractors proposal to work night shifts could only be construed as a mitigation
measure to recover the Contractors culpable delays. Therefore the Contractor is in
breach of its obligation to proceed with the Works in a timely manner and the
Employer has incurred losses (i.e. additional fees for supervision), which the
Employer is entitled to recover as damages.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Nandana

----- Original Message ----From: Palanivel

To: "'sam99@eim.ae'" <sam99@eim.ae>
Date: Mon, 23 Sep 2013 16:56:26 +0400
Subject: As-planned and Collapsible method

Dear Sir,
The Employer while determining the Extension of Time used As-planned and
Collapsible method collectively to entitle the Contractors Extended Duration. Is
this contractually and professionally correct to use two methods for one project.
Too detailed a topic to discuss in this short Q&A forum. This is an area for
experts. The Contractors burden is to demonstrate cause and effect. If he
discharged this burden adequately by using an appropriate delay analysis
technique, and if an Expert can testify that the combined method has been used
by the Employer to deny a just and fair entitlement of the Contractor, then an
Arbitrator is very likely to find in the Contractors favour. It is not uncommon to
use more than one method in a delay analysis exercise, where appropriate, but
only an Expert Delay Analyst would be able to say whether, in this instance it is
inappropriate, after studying all the circumstances.

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

Thanks & Regards,

Palanivel .V
Quantity Surveyor

----- Original Message ----From: Tareq Tayeh

To: "sam99@eim.ae" <sam99@eim.ae>
Date: Fri, 11 Oct 2013 01:17:09 -0700 (PDT)
Subject: Question for the SCA Course

Dear Prof.Sam,

Greetings!!!

First of all I would like to extend my great pleasure for the great SCA course given by your goodself
in the last june.
I am extremely sorry for being late to raise my questions but i was much busy in preparing for my
PMP exam,and then i went for a long vacation.
1. Normaly we have furnished 10% bond for the advance payment and 10% bond for the
performance, as the project progresses can we reduce these bank bonds? Yes if both parties agree. In
any event Advance Payment Guarantees generally state that the guaranteed amount decreases
progressively as and when the advance is recovered by the Employer through interim Payment
Certificates.
2-Can we consider the minutes of the meetings held, photos, video recordings as an official
contemporary record that we can refer through any future claim or dispute? They are contemporary
records and can be used to substantiate claims and as evidence in arbitrations/litigations.
3-a-What is the exact difference between LD & Penalty. Too vast a topic for this short Q&A forum. In
brief, Liquidated Damages are a reasonable pre-estimate of the losses (due to the late completion)
converted to money. When the amount stated as LD in a contract is much higher than such reasonable
estimate, it amounts to a penalty.
b-how can we calculate them (total and daily)?? Daily amount could be the loss of revenue per day
from a hotel not completed on time. A limit could be 5% or 10% of the Contract Price, which is set by

the Client at the time of going to Tender. Since Tenderers usually price this as a risk, higher the Limit,
higher would be the Tender Price.
4-If there is a variation order to double the size of an underground RCC water tank, shall we double
the BOQ rate for the original or shall we delete the old rate and establish a new price? Neither. Old
rate should be used as a basis. It should be broken down into a mini BOQ consisting of all the items in
the original tank (concrete, reinforcement, formwork etc.) with quantities and rates against each item.
The total of this mini BOQ should be equal to the Old rate. To value the variation, the quantities in the
mini BOQ would be changed to the quantities of the larger tank, but the rates would remain
unchanged. Thus a new rate for the larger tank would be derived from the old rate.
5-Where can we find the time given to the Engineer to approve drawing/submittal, reply a letter,
variation and eot claim, and what can we do if he exceed the time? Generally in the Specifications or
in Part II Conditions of Particular Application (where the documents have been prepared in a
professional manner), or if a Project Management Consultant is involved, then in his Project
Requirements Manual which usually forms part of the Contract Documents. If the Engineer does not
comply with them, then remedies are available pursuant to Sub-Clauses 6.3 and 6.4 (of FIDIC 1987
type of contracts).
Regarding EOT determinations it is 28 days (We discuss during the 4 th Session of the SCA how we
can interpret the provisions of Sub-Clause 44.3 to arrive at this 28 day conclusion. SCA Alumni are
entitled to a 50% discount if they wish to repeat any Session of the last SCA Class this year starting
on 25th October 2013.)
6-As we understand that we could perform the contract under LOA only even the contract is not
signed, for the LOI it is not official unless some party show an action, if though can we perform the
contract under it? Please clarify. Tender is the Offer and LOA is the Acceptance, and subject to certain
conditions (that we discuss in detail during the SCA 7th Session) they form a contract. Under an LOI
though there is no contract, a quasi contract is implied and therefore the contractor can still get paid.
Too vast a subject. Refer to your voice recordings/notes of SCA 7 th Session)
7-Under which clause can the engineer object to a contractors employee being on the project site if
he is not happy with (performance, attitude,..etc),? Clause 16.2 of FIDIC 1987
8-Contract signed between the client and the contractor without the presence of engineer (D&B
contract) and execution starts. At the middle of the project the client appointed a project
manager/engineer from his side, now he had not been a party in the contract, could this new
appointed party has a legal power on the contractor? In the absence of an Engineer, the Employer has
to perform the Engineers duties. If the Employer has now appointed an Engineer to perform those
duties, and the contractor has not objected to that appointment, then such Engineer has the authority to
perform those duties.
9-The project original time as per the contract finished and the project is not completed, the contractor
completed 5 months after the contractual date but until the completion no letter was sent from the
employer/engineer notifying that the delay penalty start, can the client impose delay penalty on the
contractor in the final payment, Yes, if the Contractor was culpable for the delay and the Employer
incurred losses. and can he delay the signing of the substantial TOC until accepting the penalty? No.
10-can we submit missed variation claim after substantial TOC is signed? Yes

11-If there is no description for an item in the specs can we take the BOQ item description as our
criteria? Scope of work is not stated in the BOQ. It is shown in the drawings and described in the
Specification. If one of them is silent about any details, then it amounts to an ambiguity. Clarification
should be sought pursuant to Sub-Clause 5.2 (FIDIC 1987 type contracts)
12-do we have to send the contractual letter to both of client and engineer? It should be sent to the
Engineer (and only where stated in the Contract, a copy to the Employer as well)
13-Under which circumstances could the contractor reject the appointment of a nominated
subcontractor? These circumstances are listed in Sub-Clause 59.2 (FIDIC 1987 type contracts)
14-Can we consider the vendor list attached to the specs as a nominated supplier/subcon?since we are
obliged to use them and we cannot change them. A party becomes a Nominated Subcontractor, only
when the Employer/Engineer nominates it for a specific scope of work for which there is a
Provisional Sum included in the Contract (FIDIC 1987 type contracts)

Questions should be kept brief and not more than 3 at a time !

Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng

Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors
PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668

By now, the Alumni may have realized that, by gaining all essential knowledge in Contract
Administration, though they may have accomplished most of their needs, still the
entitlements of the Company cannot be won if the other party to your Contract is ignorant
about those entitlements. Therefore educating them is also an essential part of winning your
entitlements. If you wish to recommend to them the SCA course, next class starts on 10th
January 2014.
Regards,

Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder

Arbitrator / Mediator - London Court of International Arbitration

Arbitrator / Expert - Dubai International Arbitration Centre, UAE
Middle East Representative - Australian Inst. of Qty. Surveyors

PO Box 23461, Dubai, UAE. T +971 50 4588949 F +971 4 3378668