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Contractor refuses to incorporate Consultants comments

12 replies [Last post]
Aneesuddin Zubair...
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Dear All,

Here is a situation, would appreciate your views and valuable suggestions:

1)Contractor has submitted the Clause 14.1 program after 14days of award of contract.
2)Consultant reviews the Program and issues comments to incorporate and resubmit.
3)Contractor refuses to incorporate the comments and resubmit.
4)Consultants writes again but the Contractor has gone silent.

The question is - What are the options left for consultant??? what should be Consultant Planner’s action???

Regards,

Anees

Replies

G. kumar
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Sirs,

Here my case is different. Contractor submitted CL14 programme within 28 days from work order.  But the scope of work was keep on inceasing from time to time. The project was 5bn UAE Dirhams is increased to 7bn. Taking this as the oppurtunity cintractor was dnying to submit the Revised CL14.1. Consultants asertained that Scope of work may increase or decrease in the course of time, but contractor is bound submit revised work programme. Please assist me for pushing the contarctor to get the revised baseline. Ty.

Regards,

Kumar 

Andrew Flowerdew
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Clive,

A very good point which extends to all approvals/ acceptances made by the CA. The case you quote is not the only one, add to this CA’s worrying about aspects of their PI insurance (the Employer sueing them for losses) and this has led to a huge reluctance on the part of the CA to approve/accept anything.

This in itself could lead to an Employer sueing a CA for breach of contract, especially for latent defects if the CA is under a contractual duty to check contractual complianceapprove things and didn’t!!!! Approval / non approval is a two edged sword.

In a negligence case, which is based in tort (a duty to others rather than a contractual obligation), it may make no difference whether the CA actually approved or not as it would be the state of his knowledge and whether he should have realised the consequences from the information he had. If it was reasonable that he would, or should have, does he have a duty to inform the contractor - if the consequences would result in physical injury then I think 99.9% of the time a court would say yes and therefore find him negligent for failing to warn.

There are alot of competing issues at play, the subject is probably worthy of it’s own thread but generally as long as the CA (and everybody else come to that) carries out their work to a suitable professional standard then they should have little to worry about - except for physical injury claims, where the courts will often extend the rules to fit the case in order to get at someones insurance policy so that the victim gets some compensation. A factor in a courts decision, more often than not is the commercial reality of who can afford to pay up. If the court feels the victim has a case and deserves compensation, they have to find a pot to claim it from and that is invariably someones insurance policy. Justice for the injured victim but not always entirely fair for the "guilty" parties.
Clive Randall
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Just a thought for you all on programme approval
some time ago an engineer in the UK approved a method statment.
Subsequently an accident occured that the court held could have been avoided if a degree of practical chemistry had been understood
Both the Engineer and contractor were found to be negligent in that a qualified person could have reasonably seen the outcome. The engineer having been provided with the information contained in the method statment and approving said method statment was in possesion of the facts and therefore could have avoided the incident
I have been very simple in my explanation of the case at hand as the point here is not this particular case but the ramifications of it.
From this case sprung the difficult concept of approvals. Often this means not really approved but "no comments at this time" while the reality of this shedding of legal responsibility has I think yet to be tested it has led to many method statments and programmes not being approved and often the words that"whatever I say as the engineer it does not abrigate the contractors responsibility etc etc. The first time I came across this was when the Engineer checked setting out now it is common throughout the construction process.
So if you reperesent the client think extremely carefully how you bandy arounfd the word "approved" it may come back later and bite your a***
As for penalty this is something better suited to England FC than a contract :"assertained, assesed etc" I can live with penalty I think not.
Aneesuddin Zubair...
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Thanks Andrew,

I appreciate your input on this.

Thanks again,

Anees
Andrew Flowerdew
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Oscar,

You are totaly correct in what you say. Approved or not often makes little difference at the end of the day if the contract is not incorporated - which it usually isn’t.

If the Contractor’s pretty sure of his ground for an EoT then this is usaully where the fun begins. The Contractor carries on regardless and the Employer (or Consultant) disagrees - a dispute bubbles into life as a stalemate is reached.

I avoided using the word penalty for obvious reasons.
Oscar Wilde
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Seems to be a lot of reference to programme approval
In my exeperience it is rare that the contractors programme is approved.
Often the comments are in limbo in that the contractor appears to be obliged to incorporate them but may not have an obligation to do so.
As an example I had a contract that said the programme must always meet the contract end date. Due to a number of delays which remained unresolved the contractor issued a programme which included his perceived extensions and refused to meet the original end date, The CR continued to ask for a programme that was contract compliant. Stalemate.

Agree with andrew if the contractor is missing a milestone see why, and what is the way forward.
As to the word "penalty" thertes an interesting contractual term
Oscar
Andrew Flowerdew
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Anees,

Zhang is heading along the correct lines. If the programme is not incorporated in the contract there is little you can do unless the contract expressly states that the contractor must amend his programme with the consultants comments. eg some wording such as "the contractor SHALL ammend...... or similar"

The Contractor has made a mistake and appears to be admitting this informally. He has the choice of meeting the milestone or paying damages. For him it’s a caculation of the cost to meet the milestone versus the amount of damages he has to pay. He will go with what is cheapest option unless there is some other express term(s) in the contract you can use to up the pressure.

One important question that springs to mind is why the Contractor can not meet the milestone? If it’s a mistake on the Contractors part then he meets the date or pays, if it is impossible to meet for some reason then the Contractor may have a valid defence against paying damages.

From the Employers point of view, how important is the milestone? It must have some importance for the Employer to make it a milestone in the first place.

To avoid a dispute it appears that the parties should meet, put thier cards on the table and see if there is a way forward that both parties can live with (which doesn’t by the way, relieve the Contractor of paying damages and this should be made clear to him) or at least discussing/agreeing how the Contractor can best mitigate the delay to the milestone - an implied duty the Contractor has.

Once a plan is on the table at least everyone knows where they’re heading. Hopefully then the original programme can be ammended and approved subject to some caveat regarding the milestone and payment of damages.

Thats the starting point, ignoring the problem won’t solve it and it sounds that programme provisions of the contract are the usual weak, barely worth having kind normally found in contracts. One day the industry will wake up to the fact.

Hope this helps

Aneesuddin Zubair...
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Zhang,

Thanks for the reply.

I would be grateful to have the opinion and advise from the dispute avoidance perspective from Forensic Planners.
Definetly Forensic Planners have different eyes !!!!!!

Regards,

Anees
Zhang Haixiang
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Write a letter to the contractor, tell them the schedule is rejected because ... or approve the schedule but tell them approval of the schedule will not change the contract,that means the contractor is informed that they need to pay the penalty according to their schedule

Anyway, they must pay the penalty, if they fail to achieve the milestone. (they have signed the contract)

Aneesuddin Zubair...
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Zhang & Christian,

Thanks for your reply.
The contract is based on a modified FIDIC, There is no payment milestone linked for Approval of Program, the contract calls for submission of Program within two weeks of commencement date and is not linked to any payment milestone. Contract is clear that Contractor has to submit the Program for Consultants review and approval, however it does not say anything if contractor does not comply with the consultants comments.
The issue here is the contractor after signing the contract realized that they cannot comply with one of the Penalty milestones, hence they have scheduled the programe to ignore this penalty milestone. When the consultant has rejected the program asking the contractor to comply with the Contract Penalty milestone, contractor has informally expressed his inability to comply with Penalty milestone.

The contract is not setup properly and asking contractor to incorporate comments is not going to work. In such a situation, what would be the Consultant Planner’s advise to client and Contractor.

Regards,

Anees
Christian Adrian ...
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Anees,

I agree with Zhang, check the contract first...
There must be a reason as why to the contractor has gone silent. Both parties have to discuss and come with an agreement prior to the resubmission of the programme.

Christian
Zhang Haixiang
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Check you contract to see what you can do.

For a project I did. we have very detail requirements of scheduling including software, method,level of detail, grouping, duration...

addition to that we have payment milestones like "method statement approved"," master schedule approved"

If the schedule is not approved, the contractor will not get the payment.