Prof. Sam.: My Replies Are Given in Red Below. Regards

My replies are given in red below.
Regards,
Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Quantity Surveyor and Registered Arbitrator / Expert
Australian Inst.of Qty.Surveyors-Middle East Representative
PO Box 23461, Dubai, UAE. T +971504588949 F +97143378668
----- Original Message -----

From: sathis jayaweera
To: sam99@eim.ae
Date: Sun, 27 Jul 2008 22:36:30 -0700 (PDT)
Subject: Re: Q&A-Jun08-2
Dear Prof. Sam
Conditions of Contract: RTA (Similar To DM CoC)
The Variation sub clause 51.1 says “Subject to the provisions of Clause 2, the Engineer
shall........"
Is that mean the Engineer needs to have an approval for instruction a variation? Because
variation could impact the sub clause 2.1(a)
Sathis Jayaweera.
Project Quantity Surveyor
Halcrow International Partnership
Bridges Department
If Clause 2 (either in General or Particular Conditions) states that the Employer’s

approval is required to instruct variations, YES.
Regards,
Prof. Sam.

From: "Kalupahanage, Ruchira"
To: "Prof. Sam" <sam99@emirates.net.ae>
Date: Mon, 28 Jul 2008 08:17:53 +0400
Subject: General Clarification
Good Morning!
Dear Prof.
About my present project, I have a problem. That problem explains to you as follows;
Contract Type: Lump Sum
ERI (Engineer Rep. Instruction): Deletion of scope of work item, say External cladding.
My question is when we deleting that the work item from main contractor‘s scope of work, do
we have to consider a reduction in general items.
A reduction could be considered in the prices of only those items in the General Items
which are affected by the Omission after giving a notice under 52.2(b).
Regards,
Prof. Sam.
Regards
K.C. Ruchira
Quantity Surveyor
Faithful+Gould

From: kumaran somalinga
To: sam99@eim.ae
Date: Tue, 22 Jul 2008 21:17:16 -0700 (PDT)
Subject: Question
Dr Sam - Good Day
From Lump sum contract if any item is omitted by client or consultant side, as a contractor he can take
his margin from omitted item.
Yes, if the work is omitted for the purpose of executing it by the Employer himself or
through another contractor. No, if otherwise.
Regards,

Prof. Sam.

Regards
Kumaran.
From: suraj chand
To: sam99@eim.ae
Date: Mon, 21 Jul 2008 09:44:59 +0400
Subject: Question on the " Variation "
Dear Sir,

Good Morning.

I shall be thankful for your kind clarification of the following in relation to the "Variation" Class
on 20.07.08

We discussed about the "Masonry Wall" example.Can you please let me know what would
happen, if the Client deleted the Masonry wall and added another Wall of a different
type, say a Timber fence, instead of the Masonry wall. In this case ,what would be the
quantity to be used for the variation? Will this be 100 M as in the BoQ or 200 Meter as
actuals. Contract is Lumpsum. However, the rate for the Timber fence need to newly
established.
200 m in both cases. In a lump sum contract BOQ quantities are not taken into
consideration for the purpose of valuing variations
Regards,
Prof. Sam.

Anticipating you early clarification in this .

Thanking you

Your's faithfully

Suraj

From: Binu Ninan Chirackalparambil
To: Indrawansa Samaratunga <sam99@eim.ae>
Date: Sun, 20 Jul 2008 00:39:26 -0700 (PDT)
Subject: Queries
Dear Dr. Sam,
Good Day to you. Once again a sincere thanks for sparing your valuable time to respond to our queries.
Would be really thankful if could provide your advise on the following :
1. For an item in the BOQ where only an amount is specified against that item, can the Engineer now
omit that item as a whole (because he has found that the value against the item put in the BOQ is very
high) and then re-nominate it to the Main Contractor.
NO ! A variation cannot be instructed to omit a BOQ item. Variations can be

instructed only to omit Scope of Work (i.e. what is shown in the Drawings and/or
described in the Specification).
Regards,
Prof. Sam.
The objective apparently is to effect some savings for the Employer. But is it a correct practice. Pls
advise
Kind Regards
Binu Ninan

From: Buddhika Patikiri
To: INDRAWANSA SAMARATUN <sam99@emirates.net.ae>
Date: Thu, 10 Jul 2008 11:19:19 +0400
Subject: Questions
Dear Prof. Sam
Kindly clarify following issues:
1. We understand that according to FIDIC conditions, the instruction to execute any

provisional sum to be done as per clause 58.2. My question is do we have to issue an
instruction even not to execute any P sum as well. If yes, is it under same clause
Sub-Clause 58.1 states that “………….. which sum may be used, in whole or in
part, or not at all, on the instructions of the Engineer …………..” and
therefore if it is to be used in whole or in part, instruction should be issued
pursuant to Sub-Clause 58.2, and if it is not to be used at all, that too should be
instructed under Sub-Clause 58.1.
2. In Clause 51.1 (b) of FIDIC conditions, it says we can omit any work but cannot be
given to another contractor: Is this valid within the contract period only? In other
words can we omit any work and give to another contractor upon Taking Over from
the original contractor. With the agreement of the Contractor, YES. Otherwise
the Contractor may have a valid claim against the Employer, if he can prove
that the Employer took-over before the Contractor could complete the whole
of the Works with the intention of getting part of the Works executed by
others.
Regards,
Prof. Sam.
Thanks
Buddhika Patikirimudiyanselage
B.Sc (QS) Hons, AAIQS
Quantity Surveyor | …………………… | PMT | Nakheel PJSC

From: Pemasiri Abeywickrama
To: sam99@eim.ae
Date: Mon, 21 Jul 2008 03:30:19 -0700 (PDT)
Subject: Re: Thank You
Dear Sir,
I am from the June Class- I have a practical question Hope you can help me.
Q= In the Drawing lenght of a straight special Pipe of 600mm dia is shown as 1.0m, But in the
BOQ Item for same Pipe ( or fitting ?) of 600mm dia -Lenght is 0.90m, which is the Contract price,
and No Item for Lenght 1.0m. Contract is Measure & Pay. Whats is the Contractors entitlement;
On what basis the consultant should approve payments. ?
Your question is not clear. There is nothing called a “straight special pipe”. Straight
Special is not a pipe ! It is a fitting ! If the length of the fitting is shown in the
Drawings as 1.0 m and in the BOQ as 0.9 m, then the Contractor’s obligation is to
follow the Drawing. Contractor is entitled to a new rate for a 1.0 m fitting. (If
however the layout is such that either a 1.0 m fitting or a 0.90 m fitting can be used,
then the Contractor should also ask for a clarification from the Engineer under Sub-
Clause 5.2)
If however you are referring to a short piece of pipe required by the layout, then it
cannot be considered as a fitting (a straight special) and the above is not applicable. In
this scenario if the pipe is measured by length in the BOQ (and not in nr as for a
fitting) then the actual length should be re-measured.
Regards,
Prof. Sam.
Sir, When ever your are free, you may reply, Sorry for any inconvenience.
Wish you All Sound Health!
Regards,
Pemasiri Abeywickrema,
QS-Parsons

From: "Machivale, Sandeep"
To: sam99@eim.ae
Date: Thu, 24 Jul 2008 11:38:07 +0100
Subject: RE: Thank You
Dear Prof. Sam,

The Bush visit is still haunting on our project. The Contractor had already claimed for EOT &
Loss (for Preambles part), for which the client had already agreed for 1 day EOT . Being Cost
Consultants under clause 44.1.(e ) we have already replied him stating that his claim for Cost
is invalid as the "Loss Lies where it falls".

Now he has resubmitted his claim for Loss by giving reference under the clause of
"Employer's Risk" Cl. no. 20.4(K) Acts of Government. Please suggest if declaring a
Government Holiday fits in to a Government Act and whether it is a valid monetary claim , If
yes under which provision can we substantiate this particular claim.
In FIDIC-4th, “Acts of Government” is not an Employer’s Risk under Sub-Clause

20.4. If in your Contract the Employer has retained that as a Risk, then that is for the
purpose of Clause 20 i.e. insurance (though one may question what insurance is
required against Acts of Government. – This is what happens when one amends the
provisions in a Standard Form !) and not for the purpose of EOT or Prolongation
Costs. The Contractor would be successful in his monetary claim only if that
Employer’s Risk (i.e. Acts of Government) is also carried forward (similar to other
Employer’s Risks such as war, rebellion, pressure waves etc.) to Sub-Clause 65.2 (b).
If however your contract is a bespoke Form different to FIDIC and if it has express
provisions entitling the Contractor to prolongation cost as a result of Employer’s
Risks stated in Sub-Clause 20.4, then the Contractor may have a valid monetary
claim.
Regards,
Prof. Sam.

Thanks & Regards,

SANDEEP MACHIVALE
Quantity Surveyor
Davis Langdon
From: Nabil
To: "'Prof. Sam'" <sam99@emirates.net.ae>
Date: Mon, 04 Aug 2008 15:31:10 +0400
Subject: question
Dear Dr Sam
We have completed a project and received a Taking over certificate.
We were then requested to undertake some additional works on the project after the TOC
to which we agreed to do and priced the additional variations !!!! accordingly. We undertook
the works with the clients instructions in order to meet finishing deadlines that the client
had to meet. This work was never in our scope and we undertook the works with the
intention and understanding that the works will be on an LPO basis.
The client asked that we provide breakdown between labour and material which we
forwarded. We have now been requested to provide copies of materials and subcontractors
to the client.
Can the client request this information seeing that this work is not within the confines of the
contract? You state above that you priced it as variations !!!! How can you now claim
that it is outside the contract ? Under the contract, the prices need to be substantiated.
On the other hand you also state that you undertook this work on the understanding
that there would be an LPO for it. If you can prove that the two parties agreed that this
work would be under a separate arrangement (LPO) and the Client has already
accepted the price you submitted, then of course you do not have an obligation to
provide substantiations.
Regards,
Prof. Sam.
Thanks

From: Abdul Latheef Mohamed Rizly
To: "Prof. Sam" <sam99@eim.ae>
Date: Mon, 04 Aug 2008 23:11:34 -0700 (PDT)
Subject: Resolving a variation
Dear Sir,
I am working for a qs consultant. I had a problem in resolving a

variation, ie, one of my contractor has submitted the "variation of
comparison between all construction and tender electrical drawings"
which is accepted by the employer. In this variation, I found that, he
missed out some of power panels and associated items which are
deletions, and then, I asked him to resubmit with the corrections, for
this particular submission he used the quotation rate.
In the revised submission of this variation, he used the pro-rata

rate (to recover the loss), which is much higher than (almost
double) the previous submission rate (quotation), but still the
revised submission total is less than the previous total.
How do I resolve this problem? I would like to deal this problem in a
fair manner.
Omitted work should be valued using BOQ rates/prices or rates/prices based thereon.
If however the Contractor prefers to value it using higher rates/prices (i.e. based on
his subsequent quotation), then it is his option. If you wish to point out to him that he
is going to lose an amount due to this, it is the fair thing to do, but make sure that the
Employer would not misunderstand your efforts to do a good deed.
Regards,
Prof. Sam.
Anticipating for your early response.
Thanks & Regards,
Mohamed Risly

From: Mudhar Abbas
To: sam99@eim.ae
Date: Tue, 05 Aug 2008 13:07:14 +0400
Subject: From Mudhar
Dear Sam,
Just few lines that I want say because I am not good at poetry.
Two issues that I noticed during the course are:
1- Thanks for the valuable and thorough information and knowledge that we acquired. It is
very rare to find and I doubt it is available somewhere else,
2- The second point which I think is more important is your dedication to give that
information in an altruistic way. The time you spend answering pre-sound contract
administrator and the patient that you show with them is something not rare but missed now
days.
Dr. Sam, I asked the Almighty God to protect you and keep you to the World, Generations,
and our industry.
But don’t forget if one of us lose his job, you may (not Shall or should) help him to find
another……….(joke)
Kind regards,
Mudhar A. Abbas
Area Manager-Carnival CP
Mobile: +971502037065
Turner
Turner Construction - International LLC
Burj Dubai Development - The Dubai Mall Project
Dear Mr. Mudhar,
Many thanks for your kind words.
Regards,
Prof. Sam.
From: Martinez, Johnson [mailto:Johnson.Martinez@FGould.com]

Sent: Tuesday, August 05, 2008 9:43 AM
To: sam99@eim.ae; Al Azawi, Sana; Nishan, Chamil; Arachchige, Nishanta E; Munyori,
James; Madelo, Nilo ; Sharief, Usman ; Happawana, Chamara ; cpfrancis@alshirawi.ae;
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ani@alshirawi.ae; gaj@alshirawi.ae; ravindra.reddy@alshirawi.ae;
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Subject: RE: Questions & Answers Q&A-Jun08-1
Dear Prof. Sam,

I have a question regarding interim payment certificates. Now we are on the stage of
releasing payment certificate no. 15 for the ………………… Project and we found
out that in the Preliminaries and General Requirements it seems that the total
percentage as of July, 2008 is around 52.4% whereas according to the actual work
done it is only 13.5% based on the planning report we received. My question is for the
next Payment Certificate that we are going to prepare, could we make some freezes or
hold some of the items in the preliminaries & general requirements because almost all
of the item there are in time related portion. The fact there is a big difference in
comparing to the actual accomplishment of work, so what is the best thing to do about
this matter. Thank you
You say that “…………almost all of the items there are time related………” but you
don’t say whether they are related to the activity time or total project time. First you
have to establish what is intended by the contract by studying all relevant provisions
especially the preamble to BOQ. Where the parties have agreed to pay for any item in
equal monthly/daily instalments for every month/day in the “Time for Completion”,
you cannot withhold such payment. Where the payment is to be made related to
activity time (eg. Time-Related Charge for a concrete batching plant), then such
payment should be made proportional to the progress of concrete activities (and not in
equal monthly instalments).
Regards,
Prof. Sam.

Regards,

Johnson Martinez
Quantity Surveyor
For and behalf of
Faithful + Gould – ………………… Project

Prof. Sam.: My Replies Are Given in Red Below. Regards

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My replies are given in red below.

----- Original Message -----

Conditions of Contract: RTA (Similar To DM CoC)

If Clause 2 (either in General or Particular Conditions) states that the Employer’s

----- Original Message -----

----- Original Message -----

----- Original Message -----

NO ! A variation cannot be instructed to omit a BOQ item. Variations can be

----- Original Message -----

Dear Prof. Sam

Kindly clarify following issues:

1. We understand that according to FIDIC conditions, the instruction to execute any

----- Original Message -----

Wish you All Sound Health!

----- Original Message -----

Dear Prof. Sam,

In FIDIC-4th, “Acts of Government” is not an Employer’s Risk under Sub-Clause

We have completed a project and received a Taking over certificate.

----- Original Message -----

I am working for a qs consultant. I had a problem in resolving a

In the revised submission of this variation, he used the pro-rata

Anticipating for your early response.

Thanks & Regards,

----- Original Message -----

Two issues that I noticed during the course are:

Turner Construction - International LLC

Burj Dubai Development - The Dubai Mall Project

Dear Mr. Mudhar,

Many thanks for your kind words.

From: Martinez, Johnson [mailto:Johnson.Martinez@FGould.com]

Dear Prof. Sam,

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