Claim for Design Error 3

[Ahmed Abdallah]

MEP Contractor Noticed a serious Design Error in Pump Head which it is almost 150% of the Design pump Head ; Consultant agreed the contractor calculations and revised selection . Contractor raised a claim for the additional Cost to avoid the design Error but the Client cost Engineer referred to specification " Any increase of the pump head and motor rating is deemed to be included at no additional charge." Please advise how to solve this contractual problem take into consideration the Project specification following FIDIC-1999-RED-BOOK .

 

[dik]

Contractually, check with a lawyer, but your approach will not likely work. A contractor, unless he's responsible for the design, is not likely liable for the design error. Your construction contract cannot be 'unreasonable'. You can try to force it, but there is lots of case law, in these environs, where this type of provision has been 'thrown out'. You or the owner will likely have to pay for the error.

Best you sit down with the Contractor; there can also be substantial costs for delays.

Dik

 

[miningman]

Agree 100% with dik. if I were the contractor , and had in all good faith advised the client / consultant of an error in THEIR documentation , and it was then suggested that I absorb the associated extra costs , I would insist that I will install the originally specced pump , as per the original contract , and would politely decline to be involved in any way on future repairs / replacement/ upgrade.

 

[dik]

The client's Cost Engineer coming up with his interpretation of the contract terms is a bit disturbing...<Deleted>

Dik

 

[IRstuff]

I would bet dollars to donuts that the cited phrase simply means that if the contractor had decided to put in a more powerful pump, on his own, he would foot the bill.

However, that is not the case here. You, and the client, had made an error, which is now corrected, but this is a change in scope, directed by the client and yourself. No court would see it differently.

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[dik]

Hope so, the spec should be written to avoid any ambiguity. I'm not sure what the 'Red Book' is... maybe a unit rates estimating/costing guide? Don't have much confidence in them.

Dik

 

[IRstuff]

http://lauwtjunnji.weebly.com/uploa...ing_works_designed_by_the_employer_(1999).pdf

is a prototype/template for construction contracts.

Based on the OP's description of the situation, the consultant (engineer) violated 1.9 Delayed Drawings or Instructions, by correcting their error after start of work, in effect, delaying the issue of drawings or instructions until after the contractor already paid for equipment that cannot used.

If the Contractor suffers delay and/or incurs Cost as a result of a failure of the Engineer to issue the notified drawing or instruction within a time which is reasonable and is
specified in the notice with supporting details, the Contractor shall give a further notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be included in the Contract Price.



TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

https://www.youtube.com/watch?v=BKorP55Aqvg

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[dik]

Good posting IRS... and reason for cautioning about delay claims. With some of our work, the lead time for some equipment can be several month or a year or more. Just hope he has an honest and fair contractor... there's little 'wiggle room'.

Just added... If you check your liability insurance, delay claims are generally excluded from coverage.

Dik

 

[Ahmed Abdallah]

Thank you . All

 

[dik]

It's been fun... I hope you can work your way through it...

Dik

 

[Ahmed Abdallah]

Sure , As a contractor I will ask to claim the associated cost

 

[dik]

I'm not sure what your relationship with the owner is and where any fault lies, but, you may be entitled to additional compensation for the time put in on this 'error'. Good luck.

Dik

 

[Ahmed Abdallah]

thanks mate , I work as Engineering Manager in a MEP contracting company and the Client aware of this Design Error but he asked us to proceed to avoid the project delay then now he used the specification clause to reject the claim .

 

[dik]

That's really sleazy and I hope you weren't aware of the owner's intentions... His chance in court is maybe 1% and totally mean spirited. If the shop is small, he could be forcing a contractor into bankruptcy.

The only sleazy thing I've been involved with is a project in Winnipeg where the steel fabricator made a $400K error. In reviewing the prices it was obvious that an error had been made.

I usually give a contractor/fabricator the option of holding the price or withdrawing. The developer insisted the fabricator hold his price or he would exercise the bid bond. Shortly after I submitted my memo to file and the client, I was removed from the project a short time later. A decade or so later, not related to the project, the steel fabricator went out of business.

Dik

 

[dik]

See the third posting in this thread...

Dik

 

[dik]

Was this ever resolved? and how?

Dik