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Clause 49.2 "as soon as practicable"

16 replies [Last post]
Thu, 2009-08-06 05:58
Faried Khan
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Dear All,

Can you please help me to understand clause 49.2(a) (FIDIC 4th Edition 1987), in particular that term "as soon as practicable" when describing the completion of outstanding Work and remedying defects.

In other words, my interpertation to such term is that, it is so elastic and doesn’t give a specific limit to the period required to such completion of the outstanding Work.

One thing else, what if it is mentioned in the TOC "Taking Over Certificate" the dates that such Work should be completed?, in that case, those dates can be considered practicable?.

Thank you all
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Replies

Sat, 2009-08-08 01:50
#1
Scarllet Pimpernel
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Dear Faried,

Now that you have this kind of experience, I only wish you learn. I’m saying this because I have somewhat similar experience.

Basically, it is the extreme of FIDIC and Partnership Contract.

And the lesson learn is to strike a balance between the two extremes.

For as long as the situation is in between the extremes, the life of forensic planner will always be challenging.

Thank you,
Scarlett
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Sat, 2009-08-08 01:33
#2
Samer Zawaydeh
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Dear Faried,

Program of Works details and requirements, Delay Analysis techniques and other such projects are requirements on larger projects or non conventional projects most of the time. If you are building a small building or a conventional project, then the amount of risk is small and the uncertainties are minimal. Usually, experienced engineers have the steps memorized by heart and can solve the problems that might arize to the satisfaction of both parties.

Once the Owner or the Contractor enters into a special kind of project, then it is his responsibility to minimize his risk. If they do not have the necessary contractual experience, then they should seek experts in this field. Subsequently, these experts will study the new project and propose the required processes and procedures to be implemented on the project. This can be enclosed as part of the Contractual documents only if that party know what is the best course of action.

On the other hand, if the project is medium size, with minimum anticipated risks, you might find that the Party that prepares the COC adopts a standard for implementing the Program of Works as per their experience and with the approval of the Contractor.

With kind regards,

Samer
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Sat, 2009-08-08 00:24
#3
Faried Khan
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Thanks Samer for the light you shed on this topic it was really valuable and professional, only one thing which was bothering me in so many cases which is, why that supplementary conditions (particular conditions) always kept silent (at least I have worked on handful number of projects) when it comes to EoT or the method which should be adopted in cases like method of time analysis or concurrent delay, in fact concurrent delay itself as a terminology never been seen in any particular conditions, or time at large, or types of EoT (e.g. compensable delays. excusable but not compensable delays, etc), isn’t more convenient for both parties to let the Engineer or the Designer to incorporate such terminology and almost standard methods of analysis in the tender documents to avoid prolonged negotiation pre-award process, and even more important post-contract disputes?

Any thoughts?

Thanks so much
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Fri, 2009-08-07 15:27
#4
Samer Zawaydeh
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Dear Rafael,

We are using FIDIC in this part of the world. Usually, we have two parts in the Conditions of Contract. The General Conditions as per FIDIC and the supplimentary conditions that are perpared by the Engineer or the Designer the party on behalf of the Owner.

The FIDIC conditions of contract are balanced and preserve the rights of both parties. It is the accummulation of the knowledge of experts in the field of Construction for close to 100 years to maintain a balanced distribution of risk. On the other hand, the supplimentary conditions are what the Owner wants in specific to be included as part of the Contract. This is where the Contractor should be paying attention and specifying what they want as well in an addendum when they sign the Contract.

The duration, and what is considered as practicable or reasonable time, can be set inside the Program of Works of the Contractor. This is where the Contractor’s experience in completing the works come into play, and the experience of the Engineer to reject what is presented or accept it.

With kind regards,

Samer
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Fri, 2009-08-07 14:10
#5
Rafael Davila
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Faried

There will never be something as the perfect contract. I believe oversimplification as if one size fits all is the main culprit. We solve the issue at our pre-bid meetings where we submit our questions; these are answered before bid opening and are incorporated into the contract documents. I am not talking about hundreds of items but a few relevant that must be adapted for the particular job conditions.

Architects and Owners are no fools; they can figure it out the same way they answer our pre-bid questions within 3 work days. With more time the answer would be better is my guess. The issue is when asked latter, after signing the contract.

Regarding EOT our contracts usually specify Time Impact Analysis under the specs not under the Standard Form of Agreement per-se. In practice we use the CPM as a tool to prepare our requests to make sure nothing is overlooked, then we use simplified "common sense" presentations as the Architect, Owner, Inspection and those who will evaluate the request are usually non CPM experts, believe me they do know the insight of what is going on, the will understand your request, acceptance or not is another issue, we have stubborn Contractors as well as stubborn Owners, Architects …

Best regards,
Rafael
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Fri, 2009-08-07 13:45
#6
Faried Khan
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I believe you are so correct Rafael, but I believe in that case to make the contract so specific and crystal clear leaving no room for any doubt or different interpretations, you need at least 1000 pages manual book or sort of catalogue to reach such clarity because if you would go through any COC, each and every word could be interpreted in so many ways dependant on the angle/side from which you do such interpretations, and I can give you so many examples firstly when the COC say "in reasonable time" what is reasonable? it is something vague becuase what is reasonable to the Emploer in almost all times not to the Contractor, anthor example there is no specific method of time analysis (e.g. as-built vs. as planned, etc) when calculating the EoT, also there is no specific formula when calculating the prolongation cost specially for head office, and so many other examples which left to both parties to decide, argue, fight, dispute, take cases to arbitration/court.

Sometimes I believe it is meant to be like that otherwise at least 2/3 of us will be left jobless, I mean planners, contracts administrators, lawyers, arbitrators, judges, etc :)

More thoughts are most welcome
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Fri, 2009-08-07 08:29
#7
Rafael Davila
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Samer

Wouldn’t it be better if the Standard Form of Agreement provides into the contract for these times to be clearly spelled and exceptions taken.

Like for example "the submittal reviewer will have two weeks to review and return submittals except for the following; Instrumentation (4 weeks), HVCA ( 3 weeks) ..." Just make sure under the instructions by the editor of the forms these are highlighted.

What about when a designer takes two months (nine weeks) evaluating instrumentation submittals, return it back with comments for re-submittal? I have seen this to happen. Then when the Contractor claims for extra time, ironically is the Architect who makes the determination, of course he will say No,no,no... This is why we ask for these times to be clearly spelled out during our pre-bid meetings, one of our SOP’s (Standard Operating Procedures).

Best regards,
Rafael
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Fri, 2009-08-07 06:44
#8
Samer Zawaydeh
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Dear Faried,

You will need to use your judgement in this situation. If you feel that the other party is taking too much time, and they could have completed the task sooner, then you came raise it as an "issue" with management or on step higher as a "dispute". Then you will have the chance to the situation to be reviewed by experts in the field and a solution to your problem.

With kind regards,

Samer
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Fri, 2009-08-07 05:01
#9
Mike Testro
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Hi Rafael

In English Law there is a rule of Contra Proforentum which deals precisely with the situation set down in your last sentence. Interpretation goes against the party that wrote the words.

Regarding Spanish phrases we have all heard of manana.

When in Baghdad I asked our Iraqi interpretor if there was an Arabic equivalnet of manana and he said there was but it did not convey the same degree of urgency - Inshalla Boukara - malleesh. If God wills - tomorrow - maybe.

Known in the region as IBM.

Best regards

Mike Testro
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Thu, 2009-08-06 18:59
#10
Rafael Davila
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This is an arbitrary answer, is a lazy specifier clause, he should analyze the job and be clear. This type of clause reminds me of these Contract forms defined by some professional associations in favor of their members, like AIA that gives too much power and inmunity to the Architect.

Why not instead of a contract time use as soon as possible, or even better as per my wish? In Spanish we have a very nasty definition for as per my wish but you would not get it.

Why not instead of a fixed contract amount, as what I feel is reasonable?

Interpretetions of such clauses should be in favor of the party who did not wrote the contract. This means for submittal evaluation no more than a week and for pending items repairs 2 years.

I don’t buy it, sorry.

Best regards,
Rafael
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Thu, 2009-08-06 18:35
#11
Faried Khan
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Thanks you Mike for your valuable clarification, I believe now it is more clear for me to understand it, I wish to thank yo all for your professional input.

Faried
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Thu, 2009-08-06 17:42
#12
Faried Khan
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Thank you so much Samer, I can understand it is dependant on the size of the project, I was just trying to find a specific definition to this term.

Kindest Regards
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Thu, 2009-08-06 17:37
#13
Mike Testro
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Hi Faried

The words - "as soon as practicable" mean in the shortest time that can be arranged.

It does not allow for any tardiness in the operation.

In other words get on and finish it sharpish.

Best regards

Mike Testro
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Thu, 2009-08-06 15:35
#14
Samer Zawaydeh
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Dear Faried,

This term is used by FIDIC to cover a wider range of projects (small to mega).

For a small project, as soon as practicable might be 1 day, while for a much larger projects you might need several months.

FIDIC was written by experienced personnel in specific fields. The latest version is FIDIC Conditions of Contract for Construction 1999, also known as, the RED Book. There are five book depending on the type of Contract that you have.

With kind regards,

Samer
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Thu, 2009-08-06 07:45
#15
Faried Khan
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Thank you so much Rafael for your clarification, but I believe it is too late now to argue such clauses being at the post-contract stage. Also, such provisions are kind of standard in such FIDIC COC and normaly is left vague for variety of interpretations and may be disputes.

Let us see other thoughts.

Thank you again, Cheers
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Thu, 2009-08-06 06:48
#16
Rafael Davila
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Faried Khan

In our Contracts (not FDIC) for outstanding corrective works usually a specific timeframe is given under the contract terms. Then if within this timeframe some items are still pending the contract provides for the Owner to make reasonable deductions for these uncompleted items. Otherwise this could be forever.

Maybe the Taking over Certificate is where it is specified, but I would question the provision if not known prior to contract signing.

I have seen clauses like this in our contracts but for other items usually in favor of the Owner, like time allowance for submittals evaluation. We do not like this type of clauses and we usually question these prior to submitting our proposals. Then these clarifications are included as part of the contract.

Remember to look other contract documents that might provide clarification and might take precedence over such clauses.

You should be looking for a newer FDIC edition, 1987 is kind of “old”.

Best regards,
Rafael
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