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Suranga Jayasena
Senior Lecturer Department of Building Economic University of Moratuwa
CLAUSE 20
suranga@becon.mrt.ac.lk
12/11/2009
CLAUSE 20
pages 58 to 62
CLAIM FLOWCHART
Claim Event, Circumstance arisen Clause 20.1 Contractor gives notice to the Engineer describing the event or circumstance giving rise to the Claim, within 28 days Contractor becomes aware or should have become aware of the Claim
Yes
No
No Claim
suranga@becon.mrt.ac.lk
12/11/2009
Clause 20.1 Contractor gives notice to the Engineer describing the event or circumstance giving rise to the Claim, within 28 days Contractor becomes aware or should have become aware of the Claim
No
Yes
Clause 20.1 Contractor provides Engineer with detailed particulars and within 42 days and final claim within 28 days after end of effect if continuing event and complies with other contractual requirements
No
Clause 20.1 Claim Fails The Employer is discharged from all liability in connection with the Claim
Clause 20.1 Claim approved may be limited, if failure has prevented or prejudice the proper investigation of Claim
Dispute
No
Clause 20.1 Contractor provides Engineer with detailed particulars and within 42 days and final claim within 28 days after end of effect if continuing event and complies with other contractual requirements
No
Yes
Clause 20.1 Claim approved is limited, if failure has prevented or prejudice the proper investigation of Claim
suranga@becon.mrt.ac.lk
12/11/2009
Clause 20.1 The Engineer (dis)approves, or gives opinion on the Claim within 42 days
Yes
Clause 20.1 Contractor provides Engineer with detailed particulars and within 42 days and final claim within 28 days after end of effect if continuing event and complies with other contractual requirements
Clause 20.1 The Engineer (dis)approves, or gives opinion on the Claim within 42 days
No
Yes
Yes
Dispute
No
Yes
suranga@becon.mrt.ac.lk
12/11/2009
20.4
Determination Certification
Instructions
Dispute
Valuations Opinion
Recall...
CLAUSE 20
suranga@becon.mrt.ac.lk
12/11/2009
Amicable settlement
<28d
<84d
<28d
>56d
Arbitrators appointed
Guidance for Particular Conditions It is preferable, but not essential, to agree before the Letter of Acceptance A list of potential members may be included in tender
suranga@becon.mrt.ac.lk
12/11/2009
If three, each party nominate one member for approval of other party, two members appoint chairman Each part pay one-half of DAB remuniration
suranga@becon.mrt.ac.lk
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suranga@becon.mrt.ac.lk
12/11/2009
A FULL-TERM DAB
Appointed before Contractor commence Works Visit the Site on a regular basis Also available to assist in avoiding disputes during these visits
20.2 Para 7 if at any time the Parties so agree, they may jointly refer a matter to DAB for it to give its opinion. Neither party shall consult DAB on any matter without the agreement of the other party
Extent of Variations expected full-term Magnitude of the Contract No. of DAB members 1 or 3
suranga@becon.mrt.ac.lk
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Other Party may refer THIS FAILURE directly to arbitration, without having to refer again to DAB or try amicable settlement
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20.6 ARBITRATION
Unless otherwise agreed by both parties
Rules of International Chamber of Commerce Three arbitrators Language be language defined in 1.4
Shall commence before or after completion Shall not prevent executing obligation of contract during the proceedings
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12/11/2009
CASE
PROPOSED SCHOOL BUILDING FOR SEEVALI COLLEGE
Variation Instructions were issued changing the Ground Floor walls to block work from brick work which was in original contract. No block work was found in ground floor level in the original contract but upper floor partition walls in the original contract was similar type.
Contractor asked for the same rate from the upper floor block work but the Engineer rejected it and approved rate of his own schedule of prices (used for Engineers Estimate) which is less than claimed rate.
TASK 01
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<< Adjudicator1 >> - chairman (member) << Adjudicator2 >> - member << Adjudicator3 >> - member
Dispute Adjudication Board Proposed School Building for Seevali College << Address >>
Dear Sirs,
REFERENCE TO ADJUDICATION
...............
..... We are not in agreement with the rates determined by the Engineer for Block work (varied item) at Ground Floor Level we carried out under the above contract. Therefore a dispute has arisen between the parties to the above Contract and pursuant to Sub-clause 20.4 we refer the dispute to DAB for its decision. The detail claim is attached herewith. Thank you.
Yours faithfully,
suranga@becon.mrt.ac.lk
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TASK 02
TASK 02 - TIPS
How much to write - Keep it short but clear Format Not strict, but you may use something similar to arbitration submissions Order Introduce parties and contract DAB appointed Contractual provision 1, Contractual provision 2, Occurance, your statement ........ Dispute Your claim for decision by DAB
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1. The Contractor is a civil engineering contractor registered under ICTAD as a Grade C-5. The Employer is a public school in Colombo.
2. By a contract dated 09th October 2009 (the Contract), The Contractor undertook to construct and complete certain building works, namely the Construction of Proposed School Building for Seevali College (the Works) in consideration for payment by the Employer on measure and pay basis without price fluctuation adjustment for the priced bills of quantities bid by the contractor, at the time and in the manner prescribed by the contract.
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3. The Contract Incorporates the FIDIC Conditions of Contract for Construction, First Edition 1999 (the FIDIC Conditions).
4. The Dispute Adjudication Board (the DAB) was appointed by a tripartite agreement signed on 15th October 2009.
5. Sub-clause 13.1 of the FIDIC Conditions provides that Variations may be initiated by the Engineer and the Contractor shall execute and be bound by each Variation.
6. On 28th October during a site visit, the Engineer instructed a Variation changing all ground floor walls to block work from brick work specified in the Contract.
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7. Sub-clause 3.3 of the FIDIC Conditions provides that in the event Engineer gives oral instructions the Contractor shall confirm the said instruction by writing.
8. Sub-clause 13.3 of the FIDIC Conditions provides that each Variation shall be evaluated in accordance with Clause 12 [Measurement and Evaluation].
9. Sub-clause 12.3 of the FIDIC Conditions provides that the appropriate rate for an item shall be the rate specified for similar work.
10. The Contractor confirmed the Variation instructions and notified the applicable rate to be the rate of similar work in the Contract BOQ Item 2.34: Block Work Walls at Second Floor level, by his letter to the Engineer dated 01st November 2009.
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11. The Contractor included the block work quantity with applicable rate to its Interim Statement dated 31st December 2009.
12. Sub-clause 14.6 of the FIDIC Conditions provides that the Engineer shall issue an Interim Payment Certificate which shall state the amount which the Engineer fairly determines to be due.
13. The Engineer, in the Interim Payment Certificate, had not certified the rate applied for Variation and had determined a lower rate.
14. The Engineer failed to certify payment to the Contractor of sums to which it is entitled pursuant to the said Sub-clause 12.3; which sums amount to Rs. 115,000.00. PARTICULARS
<<< Include a brief calculation here, annex if there are detailed calculations>>
15. Accordingly, the Contractor claims Rs. 115,000.00 under Sub-clause 12.3 of the Contract, plus interest thereon at the rate of three percentage points above the discount rate of the Central Bank of Sri Lanka, compounded monthly, pursuant to Sub-clause 14.8 of the Contract.
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16. I certify on behalf of the Contractor that the facts stated in this Statement of Claim are true to the best of my knowledge and belief.
WELLWELL -DONE
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