Vous êtes sur la page 1sur 7

Q1.

Conditions of Contract generally require the Contractor to obtain prior


approval from the Employer to assign any part of the Works to another
party. Explain the purpose of imposing this obligation on the
Contractor.

According to clause 3 in condition of contract document it is clearly prevents


the contractor from assigning the contract, or nay part of thereof without the
written consent of the employer.
These restrictions are particularly significant in the light of the prevent
situations where some contractor attempt to delegate ( in fact abdicate) their
responsibility by sub lettering or even assigning a job or part of it. Having
procured it under their own name.

For sub-lettering parts of the work however, the written consent of the engineer
along my suffice, unless otherwise specified elsewhere in the contract (in part
of II or special conditions)

Q2.
If the rate of progress of construction work is delayed due to unforeseen
sub soil conditions and exceptional adverse weather conditions, identify
the claimable loss or damage that the Contractor may suffer from such
situation and explain the procedure for making such claims.

According to Sub-Clause 4.11 ‘Unforeseeable Physical Conditions’ means


natural physical conditions and man-made and other physical obstructions
and pollutants, which the Contractor encounters at the Site when executing
the Works, including sub-surface and hydrological conditions but
excluding climatic conditions.

If the Contractor encounters adverse physical conditions, which he considers


to have been unforeseeable, the Contractor shall give notice to the Engineer
as soon as practicable.
This notice shall describe the physical conditions, so that they can be
inspected by the Engineer, and shall set out the reasons why the Contractor
considers them to be unforeseeable. The Contractor shall continue executing
the Works, using such proper and reasonable measures as are appropriate
for the physical conditions, and shall comply with any instructions, which
the Engineer may give, if an instruction constitutes a Variation, Clause
13.0 (Variations and Adjustments) shall apply.

If and to the extent that the Contractor encounters physical conditions, which
are unforeseeable, gives such a notice, and suffers delay and/or incurs Cost
due to these conditions, the Contractor shall be entitled subject to Sub-
Clause 19.1 (Contractor's Claims) to:

(a) An extension of time for any such delay, if completion is or will


be delayed, under Sub-Clause 8.4 (Extension of Time for
Completion); and

(b) Payment o f any such Cost, which shall be included in the


Contract Price.

After receiving such notice and inspecting and/or investigating these


physical conditions, the Engineer shall proceed in accordance with Sub-
Clause 3.4 (Determinations) to agree or determine (i) whether and (if so) to
what extent these conditions were unforeseeable; and (ii) the matters
described in subparagraphs (a) and (b) above related to this extent.

However, before additional Cost is finally agreed or determined under sub -


paragraph (ii), the Engineer may also review whether other physical conditions
in similar parts of the Works (if any) were more favorable than could
reasonably have been foreseen when the Contractor submitted the Bid. If and
to the extent that these more favorable conditions were encountered, the
Engineer may proceed in accordance with Sub-Clause 3.4 (Determinations) to
agree or determine the reductions in Cost which were due to these conditions,
which may be included (as deductions) in the Contract Price and Payment
Certificates.

The Engineer may take account of any evidence of the physical conditions
foreseen by the Contractor when submitting the Tender, which may be made
available by the Contractor, but shall not be bound by any such evidence.
Q3.
Explain the term “documents mutually explanatory

In contracts that have both specifications and drawings included as part of the
contract documents you will frequently find a statement that documents are to
be taken as “mutually explanatory” or “complimentary”. For example, in
construction if a document such as a bill of quantities stated the specific
amount of soil for excavation and a specification stated the specific size of
excavation footings and foundations, what would happen if the amount
specified had been consumed, but there was still more excavation required to
comply with the specification? Using “mutually explanatory” or
“complimentary” is an attempt to have the multiple documents read together to
determine the full requirements so not only did the contractor have to excavate
the specified quantity, they also had to meet the specification even if that
required additional excavation.

In most of those contracts that use “mutually explanatory” or “complimentary”


there may be no order of precedence established between the drawings and
specification. If there is an Architect or Engineer involved in the design, most of
the time they would prefer to not have an order of precedence and have
themselves be the decider of the conflict. If they do include an order of
precedence it may give precedence to the most costly of the two items in
conflict. As a representative of an owner I always preferred to include an order
of precedence to deal with these types of potential conflicts. I didn’t want the
architect or engineer to be free to spend my company’s money, and that could
occur if you gave them full authority to make these decisions. Construction is
local, so an Architect or Engineer and a contractor may have had significant
prior dealings and relationships so while ethically they should be neutral, they
may not always be neutral.

As between drawings and specifications, which should have precedence?


Architects or engineers will say neither, they should be considered
complimentary or mutually explanatory. Some groups give precedence to the
drawings over the specifications and some give precedence to the specifications
over the drawings. The keys in deciding the priority should be is 1) what
document provides a more detailed description of the requirements and 2) what
type of contract are you buying the construction under.

For example, using the soil excavation issue if the contract was based upon
measured quantities under a bill of materials system, you have two things in
conflict. The quantities listed in the Bill of Materials, and the quantities
required by the specification. If the quantity in the bill of materials and didn’t
take into account the amount of total excavation required to comply with the
specification, the contractor would perform the work to meet specification and
bill and be paid for the additional quantities measured. If the soil issue arose
under a lump sum contract, there would be no estimated quantities provided,
and the contractor should have determined the total amount of excavation
required to meet the specifications.

If an order of precedence does not exist, all terms of the contract documents
have equal standing. When you include an order of precedence provision all
that does is say that in the event there is a conflict between a higher
precedence document and a lower precedence document, the term or
requirement of the higher precedence document shall prevail.

Each time we have multiple documents that make up a contract, always


consider and establish the precedence you want between all of the documents
that are incorporated. This is especially important if you will be incorporating
any of the supplier or contractor's documents as part of the agreement.

Q4.
Give short and precise answers to the following questions. Allocate 5
minutes for each answer.

(i)
What is the guideline given in ICTAD Forms of Contract in determining
the progressive recovery of advance released to Contractors?

According to clause 60(1) advance payment as mobilization advance 20% and


subsequent advance of 10% in two stage of 5% each of the contract sum as
mention in part 11 calculated on sum stated in the letter of acceptance shall
following the presentation by the contractor to the employer for the full value of
the advance payment approved performance bond in accordance with clause
10 hereof and guarantee acceptable to the employer for the full value of the
advance payment be certified by the engineer for the payment to the
contractor.
(ii)
Explain the contractual obligations of a Contractor in the functions
‘Assigning’ and ‘Subletting parts of the works’.

Clause No. 3 form of contract it is clearly prevents the contractor from the
assign the contract, or any part of thereof without the written consent of the
employer. Clause 4 also prevents the contractor from sub lettering the whole
of the works.

These restrictions are particularly significant in the light of the present


situation where some contractors attempt to delegate their responsibility by
sub lettering or even assigning a job or parts of it, having procured it under
their own name.

For the sub lettering parts of the wok however, the written consent of the
engineer alone may suffice, unless otherwise specified elsewhere in the
contract.

(iii)
According to the ICTAD Formula Method for determining the adjustments
to Contract Price due to fluctuation in price of materials etc. the sum of
Construction In-Puts totals to90.00%. Explain reasons for limiting In-
Puts in this manner.

In this formula it selected as 90% of major materials and other 10% as selected
as minor materials.

(iv)
Write a short note on appointment of “Nominated Subcontractors”

"Nominated Sub-contractor" means any merchant tradesman specialist or


other person firm or company nominated in accordance with the Contract to be
employed by the Contractor for the execution of work or supply of goods
materials or services for which a Prime Cost has been inserted in the Contract
or ordered by the Engineer to be employed by the Contractor to execute work
or supply goods materials or services under a Provisional Sum.
(v)
Explain the term ‘Exgratia Claims’

An ex-gratia payment to a contractor is one not legally due under the contract
or otherwise and usually represents compensation paid to the contractor on
grounds of hardship, sympathy or fair-play. A hardship payment may be
described as one which is made without any legal obligation to do so. It is
entirely discretionary. Hence, a loss by a contractor on a contract is not itself a
justification for making an ex-gratia payment. The fact is that the risk of loss is
inherent in any commercial transaction and a contractor should expect in the
normal course of business to offset loss on one contract against the profit on
another.

(vi)
Write a short note on Engineer’s responsibility in Taking Over of Work

According to the clause 10.1 Taking Over of the Works and Sections, Except
as stated in Sub-Clause 9.4 (Failure to Pass Tests on Completion), the
Works and Sections shall be taken over by the Employer when

(i) the Works have been completed in accordance with the Contract, including
the matters described in Sub-Clause 8.2 (Time for Completion) and except as
allowed in sub paragraph (a) below, and

(ii) a Taking-Over Certificate for the works has been issued, or is deemed to
have been issued in accordance with this Sub-Clause.

The Contractor may apply by notice to the Engineer for a Taking-Over


Certificate not earlier than 14 days before the Works will, in the Contractor's
opinion, be complete and ready for taking over. If the Works are divided
into Sections, the Contractor may similarly apply for a Taking-Over
Certificate for each Section.
If the Engineer fails either to issue the Taking-Over Certificate or to reject
the Contractor's application within the period of 28 days, and if the
Works or Section (as the case may be) is substantially completed in
accordance with the Contract, the Taking Over Certificate shall be deemed to
have been issued on the last day of that period.

(vii)
State the circumstances under which a contract may be terminated due
to ‘Frustration’

According to fluctuation clause 66.1if there a war, or other circumstances


outside the control of both parties, arise after the contract is made to that
either party is prevented from fulfilling his contractual obligations, or under
the law governing the contact, the parties are released from further
performance, then the sum of payable by the executed shall be the same that
which would have been payable under clause 65 hereof, if contract had been
terminated under provisions of clause 65 hereof.

Vous aimerez peut-être aussi