Impossible Construction
In the Open Standard
Andrew NgMember for 22 years 3 months
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In my current project, the client’s engineer has copied without checking a wide repertoire of requirement in the Volume 9 on specification, and by referring to "standards" from different countries listed therein, demanded our compliance as the Build-only contractor compliance of what appeared to be grossly divergent and unworkable requirement. Application for their Statement of No Objections(SONO = the political correct way of saying "Approval") invariably attracted more comments everytime new discoveries are made of conflicting and at time irrelevant clauses which must have completely missed them during the preparation of the Contract Drawings. BQ being not part of the contract,the drawings were the sole basis of ascertaining works scope under this lumpsum price contract.
It is now blatantly obvious that if all the divergent specification were administered strictly in accordance to the printed document, there are no materials capable of meeting these requirement, or in some other cases the complexity of the jointing, communication(inthe case of control and MEP services) coupled with the space constraints and lead time for delivery etc all made the specification or at least its interpretation way beyond the timeframe or physical possiblity of construction.
What was as serious as the "impossible construction" were the endless rounds of review by the Engineer to flip-flop amongst and experiment by trail and error the various combinations of interpretation of these divergent requirement, in order to come out with what can be tolerated as a compromise solution. Not only were resources and reams of papers wasted in the process, the sequence of works as planned for other related works was disrupted and prolonged by these belated design development.
Although there is a provision within the contract which warrant not the completeness or accuracy of the details provided to the Contractor who carries no design responsbilities these consequences of a rushed contract documentation must be fairly shared by the Client.
What do you think can the basis and reasons for claiming for such design development done on the behalf of the Consultant, the consequential loss suffered from the disruption to the review process, and prolongtation to the other sections of works?
In this case of design of "impossible construction", what would be the bases of measuring the "mixed-bag" product resulting from the compromise of specifications, which was still more complex than the un-investigated design incorporated into the Contract Drawings? There has been some discussion of equating this situation like those of variation instructed after the due date for/of completion, which see the time at large and allowing Contractor as much time as he needs to complete the project, reasonable or otherwise. Can the Contractor then be waived of his compliance with the Schedule of Rates, by pricing this new scope "quantum meruit"?
In another related case, one of the nominated supplier prequalified by the Client and the specified product were found to be not capable of meeting the test requirement stipulated in the Contract. In fact the results of some other tests done earlier and supplied by the Nominated supplier was rejected by the Client and new type tests were demanded as if the Client has just seen the Nominated Supplier’s product for the first time. Would this improper manner the prequalification was conducted inthe first case or the erratic administration of prequalfied subcontractors be grounds enough to entitle the Contractor to costs and time suffered by the additional and belated requirement?
What recourse, if any, the Contractor could seek against the consultant for what appeared to be gross negligence in not checking the specification and in ensuring that their drawings and design were in compliance therewith. Wouldn’t the Client loses whatever rights to impose on the Contractor the requirement specified but missed out completely in their design, or in the Clients prequalification exercise ?
Best Regards
Andrew Huang,
www.project-resources.com
Would be pleased to hear from fellow COntracts Managers encountering the same situation in Taiwan.
It is now blatantly obvious that if all the divergent specification were administered strictly in accordance to the printed document, there are no materials capable of meeting these requirement, or in some other cases the complexity of the jointing, communication(inthe case of control and MEP services) coupled with the space constraints and lead time for delivery etc all made the specification or at least its interpretation way beyond the timeframe or physical possiblity of construction.
What was as serious as the "impossible construction" were the endless rounds of review by the Engineer to flip-flop amongst and experiment by trail and error the various combinations of interpretation of these divergent requirement, in order to come out with what can be tolerated as a compromise solution. Not only were resources and reams of papers wasted in the process, the sequence of works as planned for other related works was disrupted and prolonged by these belated design development.
Although there is a provision within the contract which warrant not the completeness or accuracy of the details provided to the Contractor who carries no design responsbilities these consequences of a rushed contract documentation must be fairly shared by the Client.
What do you think can the basis and reasons for claiming for such design development done on the behalf of the Consultant, the consequential loss suffered from the disruption to the review process, and prolongtation to the other sections of works?
In this case of design of "impossible construction", what would be the bases of measuring the "mixed-bag" product resulting from the compromise of specifications, which was still more complex than the un-investigated design incorporated into the Contract Drawings? There has been some discussion of equating this situation like those of variation instructed after the due date for/of completion, which see the time at large and allowing Contractor as much time as he needs to complete the project, reasonable or otherwise. Can the Contractor then be waived of his compliance with the Schedule of Rates, by pricing this new scope "quantum meruit"?
In another related case, one of the nominated supplier prequalified by the Client and the specified product were found to be not capable of meeting the test requirement stipulated in the Contract. In fact the results of some other tests done earlier and supplied by the Nominated supplier was rejected by the Client and new type tests were demanded as if the Client has just seen the Nominated Supplier’s product for the first time. Would this improper manner the prequalification was conducted inthe first case or the erratic administration of prequalfied subcontractors be grounds enough to entitle the Contractor to costs and time suffered by the additional and belated requirement?
What recourse, if any, the Contractor could seek against the consultant for what appeared to be gross negligence in not checking the specification and in ensuring that their drawings and design were in compliance therewith. Wouldn’t the Client loses whatever rights to impose on the Contractor the requirement specified but missed out completely in their design, or in the Clients prequalification exercise ?
Best Regards
Andrew Huang,
www.project-resources.com
Would be pleased to hear from fellow COntracts Managers encountering the same situation in Taiwan.
1 reply
Oldest first- 0Andrew Ng ·with Minor Correction.
In my current project, the client’s engineer has copied without checking a wide repertoire of requirement in the Volume 9 on specification, and by referring to "standards" from different countries listed therein, demanded our compliance with what appeared to be grossly divergent and unworkable requirement. Application for their Statement of No Objections(SONO = the political correct way of saying "Approval" here) invariably attracted more comments as new combination discovered for experimentation from these conflicting and at time irrelevant clauses. It was quite curious how these interpretation have missed them completely during their preparation of the Contract Drawings. The Contractor has always maintain the position that BQ being not part of the contract, and specification nonwithstanding, the drawings were the sole determinant of quantum and prescription of works scope under this lumpsum price contract.
It is now obvious that if these specification were administered strictly in accordance to the printed document, there are no materials capable of meeting these requirement. And in some cases, the complexity of the jointing details, communication links(in the case of control and MEP services) coupled with the space constraints and lead time for delivery etc all made desired product way beyond the timeframe or physical possiblity of construction.
Onthe other hand and what was as serious as the "impossible construction" were the endless rounds of reviews by the Engineer in order to experiment by trial and error the various combinations of interpretation of these divergent requirement. Not only were resources and reams of papers wasted in the search for a compromised working solution, the sequence of works planned for affected and other related works were disrupted and prolonged by these events.
Although there is a provision within the contract which warrant not the completeness or accuracy of the details provided to the Contractor who carries no design responsbilities udner the Contract, these consequences of a rushed contract documentation must fairly be transferred to the Client.
What do you think can be the basis and reasons for claiming for such design development done on the behalf of the engineer, the consequential loss suffered from the disruption and prolongtation to the other sections of works?
In this case of design of "impossible construction", what would be the bases of measuring the "mixed-bag" product resulting from the compromise of specifications, which was still more complex than the un-investigated design incorporated into the Contract Drawings?
There has been some discussion of equating this situation with those of variation instructed after the due date for/of completion. It has been argued that when the time was set at large it allowed Contractor as much time as he needs to complete the project, reasonable or otherwise.
Can the Schedule of Rate the Contractor is bound to use for valuing variations of similar nature be waived in this case, by the Contractor’s pricing of this new scope on a "quantum meruit" basis?
In another related case, one of the nominated suppliers prequalified by the Client and the specified product were found to be not capable of meeting the test requirement stipulated in the Contract. In fact the results of some other tests done earlier and supplied by the Nominated supplier was rejected by the Client and new type tests were demanded as if the Client has just seen the Nominated Supplier’s product for the first time.
Would this dodgy prequalification and the erratic administration of prequalfied subcontractors be grounds enough to entitle the Contractor also to costs and time suffered by the increased and belated requirement?
What recourse, if any, the Contractor could seek against the Engineer for what appeared to be negligent manner the design was administered?
Wouldn’t the Client loses whatever rights he may have to impose on the Contractor those requirement specified but missed out completely from their design, or overlooked in the Client’s prequalification exercise ?
Best Regards
Andrew Huang,
www.project-resources.com
Would be pleased to hear from fellow COntracts Managers encountering the same situation in Taiwan.
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