Narinder,

Glad to be of assistance.

To add to the last post: The contract uses the following phrases:

“… Section or part ….” on about 16 occasions,

“… Section or parts of the Permanent Works ….” about 7 times,

“… Section …” about 10 times,

“… parts of the Permanent Works ….” lost count,

“part” and “Section” are not the same thing and it is "part" not "Section" that is refered to in Cl51.1

i would suggest to have alook on the clause 1.2 and defination of "section or Part of work’ defined under the heading Defination and Interpretation.


Part of works or sections are intermediate milestone which are independent with their own properties (i.e defined scope of work, defined condition of contract alway referred under part of work or section, seperate timing).

There is difference between Milestone/part of work/section and project (whole scope of works). A project is never defined as a part of work/section (if there is no milestone)at least in construction contracts.



Yes: true: CL51F is applicable only to sectional milestones. if there is no sectional milestone, this is no more applicable.

Clause 51. f,
“SPECIFIED SEQUENCE AND TIMING of any part of work”, results that there is a mandatory constraint for some part of work DEFINED IN THE CONTRACT. This clause is applicable for that part only.

However if contractor is submitting his program of works displaying early/late schedule is not ‘SPECIFIED TIMING’. As contractor is not bound to complete any part of works on his submitted program date, only final completion date or milestone date is binding factor.

Thus ur statement under point 5 “changing sequence and reducing specified timing i.e completion date for omission work’ is not relevant.

Dear Andrew....
Let me brief the history till now.

1.
Your Statement: Confusion in the thread/topic?
My Response: “there should not be any confusion in Thread/topic. The reduction in original contract period due to omission of works is out of context, as no provision allow to the Engineer to do so. Only discussions are “Can Engineer take back or reduce the EOT already awarded to the contract for an omission in later stage”. (Post No 21)
Final Acceptance: Your initial opinion appears that original contract period can also be reduced. Thank god you agreed without wasting our time in further arguments on this.

2.
Your Statement: Under Clause 51.1/52.1/44.3, Engineer can assess the EOT for omission of work, since these clauses are silent about the EOT.
My Reply: Cl 51.1/52.1 is applicable for Cost impact analysis only. Cl 44.1 is applicable for the event ‘additional works’. As additional work is a definite event, therefore clause 44.3 should not be applicable. If both events Addition and omission of the works are known at the time of analysis of assessment of EOT, they can nullify the requirement of additional time which justify the clause 2.6 “Taking all circumstances…” However after the award of EOT, there is no provision in the contract which allows to the Engineer for re-Assessment or decrease in EOT due to omission works.
Final Conclusion: You have agreed that Clauses 44/51/52 are not applicable for the EOT/Time impact assessment of the event Omission of Work (refer Post 19 Last para).

3.
Your Arguments throughout the discussions are based on the prediction What Engineer CAN DO or CAN’T DO. For example Cl 52/51 allows for cost implication; however it does not mean that engineer can’t assess time impact.
However my reply was “Conditions of the Contract direct the Engineer, what he SHOULD DO”. Engineer has no specific power of his own, unless specified in the contract.

4.
Your Argument: Contract is silent about the EOT assessment for Omission of the work.
My Response: Clause 51 and 52 clarify and direct the Engineer regarding cost impact which is required and major concern. However if things are not required to implement, need not to be incorporated. The Fidic 4th Revision does not allow for reduction in Time for completion due to omission of work, hence not included in the contract. To perform this duty Engineer requires power/permission and for that it should be included in the contract (For Example, Contract JCT has allowed for re assessment / reducing the granted EOT under a specific Clause 25.3.2)
Final conclusion: Recommendation regarding contract’s loophole about EOT/time impact assessment for omission should be forwarded to the deciding committee for its urgent action.




5.
My Argument: Contractor has been awarded with EOT for additional work, and submitted the POW for balance works extending to the revised completion date. Under which clause Engineer will instruct/re assess/notify to the contractor for reduction in the Time due to omission of work, when there is no such claim put by the contractor.
Your Response: Most probably it may be under 51.1 (f) “Change any SPECIFIED sequence or TIMING….. OF ANY PART OF THE WORK’.
My feedback:- This clause is applicable for only SPECIFIED SEQUENCE OR TIMING (i.e if there is any milestone or specific construction sequence defined in the contract and only for a part of work, and not for whole project which implies that project completion date can not be changed). This clause has nothing with omission of work.

6.
Your Argument: You have repeatedly referred the Cl 2.6 to justify with the “impartially and taking into all circumstances”
My Response: The contents of this clause are “Engineer shall exercise such discretion impartially WITHIN THE TERMS OF THE CONTRACT and having regards to all circumstances”. This clause describes only the procedures for making analysis/decision; however this does not clarify where/when to apply/make these analyses. Hence all these analysis should be in terms of the contract, if contract allow for the EOT assessment due to addition of work, Engineer should do it; if contract does not recommend the Engineer for time impact for omission, he should not exercise. Any claim/assessment made by Contractor /Engineer or Employer will not be valid unless it is supported/Justified and covered under any provision of the conditions of the contract.


7.
My argument: I tried to justify with network logic that why original completion date is not allowed to bring back and same principle should be applicable to revised program (which reflect a revised contract now onwards) with extended completion date.
Your clarification: - Your clarification did not touch this topic to differentiate between both (why original completion date can not be moved forward, which is possible in revised completion date in your opinion, while program in both case have same logic).


I think you have agreed all the points; except that contract is silent about Time impact for omission of work.

Inspite of this u considered contract is silent about this topic then responsibly of preparation of the contract document lies with Engineer/Employer. Hence Benefit of the doubt of error/omission should be given to the contractor.

Narinder,

1. What else does an Engineer do when he calculates an eot – he resets, sets, moves, changes, use whatever wording you like, the completion date.

2. Cl51.1 The Engineer shall make any variation….. he shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:
(f) change any specified sequence or TIMING of construction of any part of the Works.

No eot involved, the Engineer is in effect instructing you to finish earlier due to the omission – but if it is assessed properly, (read below), the contractor is not going to suffer any loss, or minimal which is claimable anyway. Cl2.6 again – impartially… having regard to all the circumstances.

3. The contract is silent with regard to what happens with respect to time for an omission. In as much as the Engineer can instruct a change in the timing of the works you could argue that the contract does say what happens, but it isn’t expressly stated as being related to omissions – it is of general application should the Engineer want to use it. There is no express statement saying what happens with respect to time in the case of an omission so I would say the contracts pretty silent on the matter. Just because a contract doesn’t say something doesn’t mean it can’t be done. I don’t think the contract expressly states what grounds the employer has to deduct money off the contractor other than retention and LD’s but that doesn’t mean the employer can not make a valid counterclaim if he has one, either under the contract or relying on his other legal rights. Certainly its better if the contract does say something but no book covers every single eventuality.

4. As per previous post, the revised programme is what the Engineer should use in assessing the impact of an omission plus any other information that might be relevant - like our subby has been booked in advance and can not be moved, etc. Again as previously stated - it certainly doesn’t naturally follow that if an activity 10 weeks long is omitted, the completion date moves back by 10 weeks, the affect of omitting the work may be that the completion date moves only 2 weeks, it may not move at all in which case the completion date remains unchanged.

5. Technically speaking the Engineer could try and use Cl51.1(f) to reduce the original contract period but the definition in Cl43.1 would be a good defence against such an attempt because it explicitly defines what the completion date is. ("private dictionary rule"). If it wasn’t quite so explicit then it could probably be done.

6. If assessed using the up to date programme and all the relevant facts, what’s not impartial? It isn’t rocket science to assess, remove the activities representing the omitted work, re-link as required and hit the reschedule button – does the completion date move or not? All other activities will still have their original durations, possibly some float might be lost, (and there a very long thread on that subject in another section on here).

7. I agree, but if by omitting the work activities from the up to date programme the completion date moves ….

A couple of questions:

Why should bringing forward the completion date invalidate the contractual completion date? It’s just resetting the date, I’m sure you wouldn’t say the completion date was invalidated if you gained a further eot and the date was reset again at a later date in time.

You are not applying for an extension of time so what application has Cl44?

The situation is that the contract is silent on the matter, no clause applies except maybe Cl43 which infers that a completion date earlier than the original date can not be set. Cl44 & 51 appear completely irrelevant as far as omissions and time are concerned.

So what is the intention of the contract in this situation?

Broadly speaking - the Employer and Contractor have agreed that many of their rights and obligations under the contract, including the time for completion, will be determined in the first instance by a third party – the Engineer. If either party disagrees with the Engineers’ decision, the safeguard is that they can refer the matter to an arbitrator for review.

So it is up to the Engineer to decide on each party’s rights and obligations if the contract is silent on a matter.

In doing so under Cl2.6 the Engineer in giving a “decision” or “otherwise taking action which may affect the rights and obligations of the Employer or the Contractor” has to “exercise his discretion in the matter impartially within the terms of the contract having regard to all the circumstances”.

So and assuming that after the additional work was instructed you revised your programme AND GAVE THE ENGINEER A COPY, the Employer want to omit some work. The Engineer should now use the programme you have given him to work out the effect of omitting that work. It certainly doesn’t naturally follow that if an activity 10 weeks long is omitted, the completion moves back by 10 weeks, the affect of omitting the work may be that the completion date move 2 weeks forward, it may not move at all.

But if based on the programme, omitting the work has the affect of moving the completion date forward, then I see nothing in the contract why the Engineer can not reset the completion date at that earlier date.

That I believe is what any person would do if acting impartially after taking all circumstances into consideration and I think, the reasonable conclusion any tribunal would come too. The contract does not just work to protect one party’s interest. It is certainly the decision I would decide upon when sitting on a tribunal. Why, because it is fair to both parties.

If, as is often the case, you rearranged your work to suit the new completion date and did not give the Engineer a copy of the new programme, then how can he take that information into consideration when assessing the impact of omitting some work?

If he is assessing the impact based on some out dated programme because you haven’t told him of the changes you’ve made then he’s actually doing nothing wrong either. He’s basing his decision on what he believes to be correct information and as long as he carries the process out impartially he can not be blamed if you don’t like what he comes up with.

There’s also the revised programme under Cl14.2. If you have submitted a programme to show your entitlement to an extension of time and that programme shows certain activities to be critical, if the employer omits a critical activity then it will be a hard exercise to argue that the planned completion date has not move forward.

But, if you want a bit of fun with the employer, you are under no obligation to prove that the completion date has moved. The burden of proof is on the Engineer so all those arguments that he usually uses against you claiming that your analysis is flawed, (if you were after an eot), you can now use the same against him.

He’s , (ok it may be a she), now has to prove what was critical to completion and that the omitted activity was critical.

May be some scope to argue in this, may be not.

Hi Andrew, i have still doubt.

1. When Engineer issue an instruction for additional road works; this is a definite event and will be analysed under Clause 44.1 (a) "The amount or nature of extra or additional works". Therefore, Clause 44.3 (interim determination of extension)should not be appropriate. Contractor should be awarded EOT without giving due consideration of future omission of works (instruction for omission may be issued after 2 months).

2. Also, Clause 44.3 "Interim determination of Extension" refers the events listed under Clause 44.1 only, which are applicable for assessment of EOT. Thus EOT valid events include
(A) " amount or Nature of extra or additional work"
(B)...., (c)....., (D).....
However, there is no event which is empowering to the Engineer to make assessment of EOT for "omission of work".
Clause 52.1 is applicable for cost valuation only and not for EOT assessment.

3. Furthermore, Clause 44.3 specify that "No final review shall result in a decrease of ANY EOT already determined by the Engineer". This clause (the work ANY EOT) does not compare only the final EOT and last interim assessment, but Final EOT w.r.t any interim assessment made till date. i.e if you make an interim assessment (60 days) due to additional works and later decrease by equal amount due to omission of work. Final Review should be 60 days EOT.

Narinda,

Which version of the FIDIC 4th Edition are you working too? It got amended and reprinted a few times – 1988, 1992…. Assuming it’s the fully amended version:

Alterations, Additions, Omissions

Cl51.1 Variations – The Engineer shall make any variation …. He shall have the authority to instruct the Contractor and the Contractor shall do any of the following:

(a)     increase or decrease the quantity of any work…
(b)     omit any such work….

No such variation shall in any was vitiate or invalidate the Contract, but the effect, if any, of all such variation shall be valued in accordance with Cl52….

There’s the power to do it and the money side of things.

Cl 51.2 Instructions for Variations – The Contractor shall not make any such variations without an instruction… Provided that no instruction shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an instruction given under this clause, but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities.

If the Engineer omits a section of work, ie, it isn’t simply a re-measurement change in quantities using the original drawings, then he has to issue an instruction. (ignoring for the second the 15% increase provision)

Cl44.3 Interim Determination of Extension - …the Engineer shall review ALL the circumstances and shall make his determination ….

No FINAL review shall result in a decrease of any extension of time already determined by the Engineer.

No such restriction on interim determinations so in interim determinations the Engineer can move the completion date backwards or forwards as the circumstances dictate.

He should assess the events in the order that they happened but is quite at liberty to give an eot for additional work and then reduce it for omitted work in a following interim assessment.

Only when he comes to the FINAL assessment does the contract say he can’t take back or decrease any eot already given, (or the original completion date).

Hope this helps

Mike,
i do not agree with your statement that "addition and omission have to be considered in the same analysis".

The EOT should be awarded at the time of issuing instruction for additional works, which will entitle the additional time for the contractor. at that time there is no instruction for omission of work, so how can you put both events in same analysis.

Furthermore, Contract clause 44 (recommendation of EOT) does not allow / or is not applicable for the event "omission of works", then under which clause can you evaluate the impact of EOT of the event "omission of work"

Hi Narinder

Both the addition and ommission have to be considered in the same analysis - you cannot pick and choose which is best for you.

Have a look at my latest entry in "Owner Owns the Float 2" which sets out the concurrency rules.

There will always be disputes between delay analysts working for different sides of the argument which is a good thing otherwise I would starve.

Best regards

Mike Testro

Hi Narinder

A skilled delay analyst deals with this type of scenario all the time - your scenario is relatively simple.

Any EOT will be what the delay analysis demonstrates.

Best regards

Mike T.

Hi Narinder

Yes - under FIDIC and ICE the Engineer can change the sequence or timing of the works.

He can also omit works.

If such changes reduce or increase the Clause 14 contract then the instruction is valued accordingly.

Such variation does not invalidate the contract which means all the clauses remain intact and are to be applied contractually - including the completion date.

Best regards

Mike Testro

The same JCT rule,

there is a clause for contract determination

Remove the contractor

No more headache

Hi Faried,

I do agree with you Faried. This is really a mess since the contractor will use wahtever advantage they can. The Contractor can prepare a revise program showing that irrespective of the reduction of scope, the project duration will remains as per original.

But if we think about it really, it will be for the contractor’s advantage to finish earlier in view of the reduction of scope since his preliminaries will be reduced relative to the deployment of management, meaning savings in paying the payroll of project managers, construction managers, engineers, etc. savings in indirect cost.

As for the owner, they should explore all posiblities to reduce the project duration in view of reduce scope of works. Both parties should find ways to benifits.

OR, what is the owner in power for: contract determination and replace the contractor in the event of refusal to reduce the project duration. The contractor is idiot anyway, so no need for the project to suffer more for idiotic contractors.

The reason to reduece the project duration is logic.

If 30% scope was remove from the original scope, then, if follows that the new scope after the omission is much less compared to what was originally contracted.

The best way to determine the reduce project duration is to evaluate the baseline cpm.

In the event that the activities remove are in the critical path, then, logically, the project duration will be reduce.

Basically, contractors will not accept this approach. WHY???? I DONT KNOW WHY

(shhh, could be greed)