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Issue of Design Information

20 replies [Last post]
Fri, 2004-07-09 09:18
Nicos Pozatos
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In a road project the Engineer undertakes the responsibility to issue Design Information in accordance with the approved performance programme.

During the execution the works are behind schedule. Is the Engineer still obliged to issue information in accordance with approved performance programme or he can issue this information in accordance with the actual progress of works.
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Tue, 2004-07-27 06:14
#1
Stuart Ness
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Whilst it appears that a number of us are all reading from the same page in regard to Nicos’ entitlement to claim EOT (and some, such as myself, feel that he is also entitled to a bag of cash!), I also feel that some are missing a fundamental point!
Nicos has confirmed that he is operating under a FIDIC Contract and that all notices have correctly been issued to the Engineer. Under Clause 6.3 of FIDIC, the Contractor is required to give notice “…whenever planning or execution of the Works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the Engineer within a reasonable time.”
Nicos’ original question was whether or not the Engineer was required to issue the drawings in accordance with the Contract schedule or not. Most of us supported the view that the Engineer was required to provide the drawings in line with the schedule.
However, a detailed examination of Clause 6.3 confirms that there is no requirement for the extent of delay in the drawings to be measured against the Contract schedule (or any other schedule, for that matter); the only criteria for the Contractor to give notice is that his execution of the Works is likely to be delayed or disrupted. Once that notice has been issued, including any details of the requirements and likely delay, then the case travels on to the requirements of Clause 6.4.
Nicos’ Engineer has taken the predictable line that although he (maybe admittedly) issued the drawings late when measured against the Contract Schedule, this in his view didn’t matter because the Contractor was late anyway!
Clause 6.3 of FIDIC, however, expressly allows the Contractor to give notice when his execution of the Works is likely to be delayed or disrupted; there is no caveat about being late or early or in line with the Contract Schedule. The Contractor is entitled to give notice if his work is going to be delayed or disrupted, irrespective of his performance in relation to the Contract Schedule.
In other words, the Engineer’s view that the Contractor was late anyway is entirely spurious and unfounded (and I still think that Nicos is entitled to his additional costs related to the resultant disruption and/or delay), and the reference to the Contract Schedule is also specious and incorrect!
I hope that this clarifies the contractual position a bit.
Cheers,
Stuart

www.rosmartin.com
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Tue, 2004-07-27 02:37
#2
Dayanidhi Dhandapany
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Hello John,

What you have said is 100% correct, The Designer may be thinking that the contractor is already in delay, so that they are taking some advantage of doing their homework lately and issuing required information to the contractor based on the current progress schedule, denying the contractor of doing some advance planning to mitigate their own delay.

I strongly believe, Nicos can demonstrate Designer’s delay(if it affects the critical path) into his programme of works to obtain EOT without any trouble.

Regards

Daya
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Mon, 2004-07-26 15:39
#3
John Whitney
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I’m with Alex Wong on this.

Client design engineers often make the error of holding back information release in line with a contractor that is running late - then allege that they are not delaying the Contractor!

The Contractor may be late for a good reason, i.e. client problems. Even if he is not, the designer is playing a with dangerous game by withholding information on the back of an (alleged) Contractor delay, because his late information is preventing the Contractor from recovering that delay. In other words, the client is willingly committing an act of prevention - for which the Contractor would be entitled to delay, and EOT if on the critical path (if not necessarily his costs being paid).

For this reason, I always recommend my contractors to request design information in line with (or earlier than) the approved programme.


John

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Mon, 2004-07-26 03:05
#4
Dayanidhi Dhandapany
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Dear Nicos,

First of all, the Engineer is responsible to issue all the relevant necessary information based on approved programme only.

To claim EOT in your case, you can try the following:

1. Use your original approved baseline programme to input the Actual Completion dates for Engineer’s issuance of drawing activities before the relevant items to be commenced to see the effect of delay in project completion date(assuming that if the contractor progressed as per the schedule without any delay).

2. Also you have to choose appropriate progress updated schedule (which would be submitted on monthly basis to your client) to input Engineer’s issuance of drawing activities to see the effect of delay in project completion date.

Based on the above two programmes you can find the net delay to the project completion date, hence you can claim EOT if applicable.

Regards

Daya
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Mon, 2004-07-12 20:23
#5
Alex Wong
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IMHO the clients is bound to provide the information according to the original plan regardless of the contractor’s progress.

i.e. part of the construction is delay due to material shortage of lack in progress. However, if the client holding the design information whereby the contractor already have a team of designer sitting and waiting for the information to proceed how can the client justisfy.

I guess you need to do a cause and effect analysis of how the information causes impact on the original programme and critical path.

alex
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Mon, 2004-07-12 13:49
#6
Stuart Ness
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Hi Tomas,
FIDIC stands for Federation Internationale des Ingenieurs-Conseils (in English, International Federation of Consulting Engineers). It is an organisation with its base in Switzerland, and it produces Standard General Conditions of Contract that are frequently used for international projects (for example where projects are carried out by Contractors working outside their own domestic base).
The covers of the FIDIC forms of Contract come in different colours:
Red for civil engineering works
Orange for Design-Build and Turnkey projects
Yellow for Mechanical and Electrical
White for Consultancy Agreements.

You can find out more at www.FIDIC.com
Hope this helps
Cheers,
Stuart
www.rosmartin.com
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Mon, 2004-07-12 13:29
#7
Tomas Rivera
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Excuse my ignorance; but, would some of you be so kind in explaining what FIDIC means?

In what type of projects is it used and what part of the planet?

I suppose it is some kind of standard for construction contracts. And it seems that it is common knowledge for many of you.

Thank you very much

Tomas Rivera
Altek System
Detailed Scheduling and Control
of High Performance Construction Projects
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Mon, 2004-07-12 09:06
#8
Stuart Ness
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Nicos,
I would recommend that you stay away from the "concurrent delay" line of thought, as the Engineer will manipulate this to try and show that the parallel concurrent delays cancel each other out, as a result of which you will be denied your additional time and costs. ;-(
You would be better to demonstrate that the delays by the Engineer and the Contractor are in series and that their separate impacts are distinguishable from one another. This way you should still be able to hang on to your Contractor’s separate entitlement.
Cheers,
Stuart
www.rosmartin.com
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Mon, 2004-07-12 07:57
#9
Nicos Pozatos
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Hello Stuart,
Thank you for your comments.

I knnow it is a difficult situation. I will focus my effort to prove that it was a concurrent delay of the Engineer and the Contractor. In which case I believe that the contractor will be entitled to Etension of Time but not any additional cost. Still you are wright the key is the word "..reasonable.."
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Mon, 2004-07-12 05:54
#10
Stuart Ness
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Hi Nicos,
I have had the same problem as you on a couple of road projects under a FIDIC Contract.
The first thing is that two wrongs don’t make a right! Just because the Engineer has delayed the issue of drawings when measured against the Project Schedule, which itself has been delayed by the Contractor,it does not automatically entitle the contractor to claim either EOT or additional costs.
However...if the Engineer has caused additional delays beyond those delays attributed to the Contractor,(and you would need to prove that such exacerbation was due solely to the Engineer), then the Contractor should be allowed an amount of additional time (beyond that caused by himself) which impacts the critical path. In addition, I would also suggest that the Contractor is entitled to recover the additional time-related costs that he incurs for this specific additional period for which the Engineer is responsible.
As it says in Clause 6.4 of FIDIC, the Contractor is entitled to both EOT and costs in such a situation, but the crucial point here is that the Engineer’s failure to issue drawings is related to "...within a reasonable time in all the circumstances...". I would argue that "in all the circumstances" includes recognition of the Contractor’s self-induced delays, and that the Engineer’s late issue of drawings was not within a reasonable time even taking account of the Contractor’s delays. This should then leave the way open to claims for that period of time attributed to the Engineer, and - if it hits the CP - will grant you EOT.
Of course, the Engineer with fight tooth and nail because his own reputation will be on the line here...but that’s another story.
Good luck
Stuart
www.rosmartin.com
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Mon, 2004-07-12 03:53
#11
Shahzad Munawar
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With respect to overall scenerio it seems that the Contractor is defaulted in achieving the required progress of Work and the Engineer is only obliged to give drawings as per actual progress so the Contractor can not claim any prolongation costs in this respect.
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Mon, 2004-07-12 03:52
#12
Shahzad Munawar
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With respect to overall scenerio it seems that the Contractor is defaulted in achieving the required progress of Work and the Engineer is only obliged to give drawings as per actual progress so the Contractor can not claim any prolongations costs in this respect.
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Mon, 2004-07-12 02:49
#13
Nicos Pozatos
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Hello Issa,

It is a FIDIC style contract. All notifications have been served properly. The problem is that the Engineer’s position is that he was only obliged to isue drawings in accordance with the actual progress of works.

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Mon, 2004-07-12 02:39
#14
Issa Shaweesh
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hi Nicos,

Without reading the conditions of the contract I cannot say if the contractor is entiltled for prolongation costs. Also forgot to ask you if the contractor did notify the delay in a timely manner, as with many contracts notification of delay is a must prior to sybmission of an extension of time claim.

Regards,

Issa
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Mon, 2004-07-12 01:26
#15
Nicos Pozatos
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I Agree with you Issa,

The Engineer was also out of Schedule. Mayby the contractor is not entitled to Prologation Cost but I believe he could get the extension of time to avoid liquited damages.
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Fri, 2004-07-09 11:19
#16
Issa Shaweesh
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hi Nicos,
Ignoring current progress on the project, Would the delay caused by the Engineer have an impact on the Project Critical Path on the agreed performance programme? if so, then the contractor would be entitled for an extension of time.
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Fri, 2004-07-09 10:18
#17
Nicos Pozatos
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The contractor suggests that if he had the information in accordance with the approved programme, he could take actions (reschedule works, hire subocntractors etc)in order to mitigate losses and avoid liquided damages. Therefore the Engineer by not giving this information early enough and in accordance with the approved programme, he deprived the contractor to take actions to mitigate his losses. Is this correct ?
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Fri, 2004-07-09 10:01
#18
Shahzad Munawar
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Engineer is not defaulted in issuance of design information in your case so the Contractor can not claim Extension of time as well as associated costs.

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Fri, 2004-07-09 09:45
#19
Nicos Pozatos
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Shahzad Munawar,

Thank you for your reply.

In the case that the Engineer fails to issue information in accordance with approved programme with the excuse that the contractor was behind schedule and he did not need this information anyhow, can the contractor claim extension of time and on what grounds ?

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Fri, 2004-07-09 09:23
#20
Shahzad Munawar
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Engineer is not responsible for this delay in execution of Works. Contractor is responsible for that. So Engineer continues to issue Design information as per approved performance programme not rely on actual progress of Works.
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