My Comments are given below in red:-

From: Samiullah khan [mailto:achalgarh@yahoo.com]

Sent: Saturday, August 11, 2012 4:10 PM
To: Dr.s Sam
Subject:

Dear Sir,
I am a part of winter class 2008.
I am working in a MEP company. I received an Engineers Instruction to cancel one
equipment which is delivered and purchase price is more than BOQ can we consider BQO
amount as omission and purchase price as a addition.
Yes you can do that if the Contract is FIDIC 4th Edition or FIDIC 1999 (both without
amendments). If however the price fluctuation clause is amended to pass the risk of
fluctuations to you, and the supply/cancellation occurred within the period for which you
have the liability for fixed/firm price, then you would not be able to do this.
(If the value of Omission exceeds 15% of the Effective Contract Price, then under SubClause 52.3 of FIDIC-4th or similar, you can at least claim back any loss of overheads. Under
FIDIC 1999 you can claim this loss of overheads, even if the value of omission does not
exceed 15%. We deal with this in detail during the advanced class. Next Advanced class starts
on 12th October 2012).
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

KindRegards
Samiullah Khan

From: asanka udayanganie [mailto:audayanganie@yahoo.com]

Sent: Saturday, August 11, 2012 1:08 PM
To: sam99@emirates.net.ae
Subject: Payment upon termination of subcontract
Dear Sir,

I am one of the students in your CA-AC and SCA classes in 2009 and please comment on following.
Due to poor performance of the Nominated Sub Contractor, Can main Contractor terminate the
nominated Sub Contract under FIDIC 1987 Red book? Termination should be under the Subcontract
(nominated or domestic) and not under the Main Contract. Therefore the reference to FIDIC 1987 is
not relevant. If however you want to know whether there are any provisions in FIDIC 1987 dealing
with the termination of a subcontract then the answer is NO.
If main Contractor has terminated subcontract under clause 18.3 of FIDIC sub contract 1994
1st edition, and he is carried out woks from another Contractor then can he recover any additional
cost incurred from previous sub contractor or Main contractor can recover any additional cost due to
only he is taking some portion of sub contract work? The answer is Yes in both cases, however the
Main Contractor is required to demonstrate that the additional cost is reasonable (such as lowest of
competitive quotations etc), and he discharged his obligation to mitigate the additional cost. As
discussed during the Advanced Course, a court order is required to terminate or to get the work done
through another party at the defaulting subcontractors cost. (Next Advanced Class in Dubai starts on
12th October 2012)

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 sir!

Asanka U.J.Muhandiram
Quantity Surveyor,
----- Original Message ----From: aruna kumari
To: sam99@eim.ae
Date: Mon, 16 Jul 2012 21:32:49 +0400
Subject: Request for clarification
Dear Sir,
Good evening
I hope you are doing well. I request your kind comments on the following issue.
A project was awarded under re-measurable contract for commercial use. In between the project client decided
that they will convert the commercial use to residential. Hence, the client asked the main contractor to finish the
first stage work by 31st Jan 2012 and from Feb 2012 to sep 2012 (8 months) was considered as slow down
period where any small Works that is not under hold can be carried out at site. Also, an amount of AED
178,000.00/month was agreed to pay as preliminary for the whole slow down period (i.e. 178000 x 8 months).
The contractor completed stage 01 Work by end of Jan 2012 and the slow down period started from Feb
2012. For the month of May 2012, the main contractor raised an IPC and have claimed the slow down period
monthly agreed perlim but he has also claimed an additional preliminaries from original BOQ for the fewer works
carried out as part of BOQ Works. Hence, the argument that no additional prelim shall be paid for Works carried
out from BOQ.
Please comment Sir whether the main contractor is eligible for the additional prelim other than the slow down
period agreed amount AED 178,000.00.
If the agreement is clear that the 178,000/- is for that part of the Prelims (such as security, de-watering,
maintenance of temporary buildings, protection, safety, minimal supervision etc), then the Contractor should not

claim again for such activities from the prices given in the Preliminaries of the BOQ. However, if the Contractor
also carried out some of the work during this period, then any Preliminaries specifically related to such work
(scaffolding, freight, import duty etc.), could be claimed, unless the Agreement is extremely clear (without
ambiguity) that such costs are also included within the 178,000/-. As discussed in detail during the SCA Seventh
Session Drafting the Agreement, if the agreement is not drafted in an unambiguous manner, disputes of this
nature can easily arise. (Next SCA class in Dubai starts on 7th September 2012. Please inform your colleagues
who could benefit from it, as this could be the last class this year).

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

I heartily thank you for all your help in need.

Your's sincerely,
Aruna G.
----- Original Message ----From: selva raj
To: sam99@eim.ae
Date: Wed, 11 Jul 2012 22:57:31 -0700 (PDT)
Subject: Advise on Variation
Dear Sir,
Good Morning ,
I am one of the students of your SCA previous batch.
I kindly seek your comments to the followings
In the contract drawings , one of the roof finishes was missed out in the drawings and during ( post contract )
project execution Engineer found that , this finish should be as per similar finishes of other roof finishes and
instructed as variation to contractor to execute the work and variation cost was recommend to Client for approval.
Our contract based on FIDIC 1999, We are advised by specialist cost consultant as follows:

Pursuant to clause 4.11 it is the contractor to satisfy himself with his price and ensure that it covers all
his obligations and all things necessary for the proper execution and completion of the works , and
as the mentioned change is necessary for the completion of the works and without the same the work
will not be properly executed, thus the Contract Price is including this works. Contractor is not

responsible for the design. It is the Employer who should provide the design. Contractor
cannot be held responsible to find out what is necessary as a finish !
Moreover, the contractor should have raised any queries during the tender stage to confirm the
finishing of the mentioned area. This is not a valid argument to protect a design deficiency. If the
Designer who had few months (if not years) to design, missed this finish, how could one expects a
Tenderer who had only few days to tender, not to miss it !
Since the Common Practice as it is a roof area, the finishing of the same will be the same finishing for
the Roof even it is not mentioned in the drawings, and the contractor negligence to obtain such
information shall not relieve him from his responsibility pursuant to clause 13. Clause 13 of FIDIC

1999 does not refer to any such responsibility or negligence !

In addition to the above, since the contract is fixed price lump-sum thus the contractor shall execute
all related works to the contract in accordance with the required work to ensure the proper execution
of the work and making use of it, and we are in the opinion that the finishing for the roof is a must for
the proper use of the building and the same is part of the lump sum contract price, specially where
there is no any comments stating that such works is to be done by others. This argument is valid

only for Design & Build contracts ! For build only contracts, the Lump Sum Contract Price is
deemed to include only what are shown in the Drawings and described in the Specification.
The above comments given by Cost Consultant are applicable or not in this scenario? As can be seen
from the above, all arguments are not valid. A valid argument could perhaps be to say that the Lump
Sum Contract Price should include the cost of the missing roof finish because the Specification
requires it, but in order to argue in this manner the following conditions should be satisfied:-

The Specification should, in clear unambiguous words, state that all roofs shall have that
specific finish.
There should not be more than one roof finish described in the Specification, Drawings or any
of the Contract Documents (otherwise the contractor can still argue that it is ambiguous which
of the different roof finishes should apply to that particular roof area, which ambiguity should
be resolved in favour of the Contractor according to both the Contra Proferentem principle
and also the UAE Civil Code. We discuss about these matters in detail during the SCA course.
If you wish to recommend it to a colleague, next SCA class in Dubai starts on 7 th September
2012).

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 and Regards

D.Selvaraj