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Damages caused by other contractors

13 replies [Last post]
Sun, 2009-02-22 01:17
Sajid Balma
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Dears
We are involved in a project where various other contractors are working and at some time in the same geographical location. This obviously require a big nuiscance if others are not paying attention and care of the works done by others.

We have an instance where one of the contractor damaged some of the works beyond repair. We sent a notice to the Employer with pictures of the damages.

The employer replied to us reffering FIDIC 4.6 (Co-operation) and put all responsibility on us for the damages.

I would like all of you to please comment on this and how should we safeguard our interest or make a claim on the damages.

Regards
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Replies

Sat, 2009-02-28 04:33
#1
Sajid Balma
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Hi Ken
Thanks for your reply on both subjects.

No, both of my posts that your are involved in right now, are for two different projects.

I always look for resolutions in the contract documents but, at the same time need to focus on much larger issues than those that might not pose a big threat on my time & cost. And thats where I agree with Samer. I hope that clears any doubts.

Now, for the other one, we will be having another round of talks with the Engineer to settle our Final Accounts day after tomorrow. But, apparently things get nastier this time as both sides are ready to confront each other with a big bang.

Keep you posted on this subject in its own thread.

Regards
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Sat, 2009-02-28 04:07
#2
Ken Sadler
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Hi Sajid,

Samer prefers the "God willing" approach! If you have faith then you can concentrate on producing programmes and the other "petty" issues will solve themselves.

By the way, is this job the same as the thread where you have just posted this to me;


#Hi Ken
Further update on the subject.

Talks between Employer & us failed. The Employer is unwilling to listen let alone consider any of our demands.

I hope court is last option left with us to recover our losses.#


Seems God is willing you to get stuffed on that job.

Listen to Samer if you want, but the contract is actually a pretty good method statement which is worth working to!!

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Thu, 2009-02-26 16:20
#3
Samer Zawaydeh
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Dear Sajid,

You are most welcomed. Hope the information benefits your.

Best Regards,

Samer
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Thu, 2009-02-26 01:38
#4
Sajid Balma
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Hi Samer
Thanks for your reply.

I agree with your comment

"Spending your time in solving problems instead of finding the best Construction methods, technical and managarial solutions will cost you a lot."

It really re-aligns my focus.

Thanks & Regards
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Wed, 2009-02-25 14:35
#5
Samer Zawaydeh
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Dear Sajid,

It depends on the relationship that the client is cultivating with the Contractors and at site. If the Client or the Contractor are excersizing tough measures, I can assure you that in most cases they will pay more to remedy the damages and waste valueable time.

You need to keep your eye on the ball and make sure that utilize your execution time properly. I would advise not to waste valueable time in solving petty problems at site even if they cost you some money. Chances are that you will recover these cost from Contractors who will make an effort to compensate you for your losses.

Ideally speaking you need to achieve customer satisfaction, best quality and minumum cost. Spending your time in solving problems instead of finding the best Construction methods, technical and managarial solutions will cost you a lot.

Best Regards,

Samer
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Wed, 2009-02-25 04:12
#6
Ken Sadler
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Sajid,

It would be nice if everyone were fair and reasonable, but as you say, not all are. You are right to stand your ground

Charleston,

Its OK if your senior staff do not have the balls to stand up for themselves. The trouble is that they might make it your problem as you are an easier target for them than the Employer. It happens all the time. All you can do is state your opinion and leave them to it.

It does not have to be presented in an aggressive way. If the Employer is fair-minded then he will agree that the other contractror’s refusal to make good the damage is unreasonable, and he will put pressure on them to comply. After all, it would reflect badly on the Employer for choosing such an unreasonable contractor. If the Employer is not interested in seeing fair-play, then frankly, he deserves to be treated contractually and without compromise.
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Wed, 2009-02-25 00:55
#7
Sajid Balma
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Hi Samer

I appreciate your thoughts on this issue. Ideally, one should not cause any hindrance or damage to other party to their utmost effort. But, what if you find that the others are not paying or trying to pay any attention to make this happen.

I don’t think, as a Contractor, I make other contractors liable to pay for the damages. I charge my Employer who may go to back charge the same from the offending party.

Regards
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Tue, 2009-02-24 17:35
#8
Samer Zawaydeh
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Hi,

I would like to mention actual practices that is being carried on various sites with several contractors working at the same time (from 2 up to 40 contractors).

The key to a productive site is teamwork. That means that from the highest level to the lowest level, the teams must have a common understanding of completing the Job to the satisfaction of the sponsor. The key to solving all the coordination problems that migh arise is planned daily meeting at the right level.

Damages that happen are recorded and paid for by the party causing the damage. Unless someting major happens, in most situations, this method works and is fair. The worst case until now is 50K on a 10M job and the best case is 0 damages.

Best Regrds,

Samer
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Mon, 2009-02-23 18:42
#9
Charleston-Joseph...
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Hi Ken,

That was great idea.

But, in practice, it seems our company is not really that aggresive to pursue such contractual issue.

I do agree with your idea. It is only that our managers seems scared to offend the client and the client representatives.

But I will try, to make a nuisance and to make a difference in contractual management. I will not let this bright idea go to trash.

Cheers,
Happy Planning and Scheduling
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Mon, 2009-02-23 06:58
#10
Sajid Balma
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Thanks again
I hope my boss allows me to write what I want to write as per 4.6.

I have no bussiness to talk to the other contractor on damages etc. Virtually, he is non-existant to me for this. I know my Employer to deal any matter arising out of his (other contractor’s) action(s).

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Mon, 2009-02-23 04:05
#11
Ken Sadler
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Great stuff!

Don’t let them suggest that you recover your costs from the other contractor. You could do this but you would have to do this in tort rather than contract as there is no contract between you and the other contractor. (I know Pakistan is a common law jurisdiction that follows English law -not sure if you use the term "tort". It is the law that covers duty of care etc. - see Donoghue v Stevenson [1932])

It is easier to sue in contract than tort. So your first reference is to the Employer. He instructed under clause 4.6 that you allow HIS contractor onto YOUR site! He is liable to you for the costs arising out of that variation. That includes any damage caused by HIS contractor.

Dig your heels in !!!
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Mon, 2009-02-23 02:19
#12
Sajid Balma
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Thanks Ken
We brought this issue up in today’s meeting & got a reaction from them as we have blown up their @$$es.

Regards
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Sun, 2009-02-22 15:06
#13
Ken Sadler
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Hi Sajid

In order for both parties to retain their rights under the contract, the site is regarded as being in the posession of the contractor for the duration of the works. This principle is particularly important to the contractors insurers.

Clause 4.6 does require the contractor to allow onto site the Employers direct contractors etc, but you will see that the clause specifically states that such access will be regarded as a variation.

If one of the employer’s direct contractors causes damage to your works, that becomes a recoverable cost under the variation. Any additional insurance premiums that you incur because of the increased risk of having people outside oyur control on the site are also recoverable under the same variation.

If the Employer has not issued a variation under Clause 4.6, and refuses to do so, you should exclude the other contractors from site - they have no right t be there.

Remember that the site is still yours even if you allow other contractors to work there. They should still come under your control as far as coordination and safety administration are concerned. If you feel that they are not professional enough to comply with your requirements, you can raise this as an objection with the Employer.

Regards

Ken
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