Whether the Contractor is entitled to be paid additional monies in respect of the excavation and removal of the reinforced concrete and, if so, what the basis of the valuation should be.
Assignment brief 1600 words assignment task A and B
Construction Law & Dispute Resolution
Following the UK Government’s decision to fund the single biggest investment in the North of England railway infrastructure since the industrial revolution, Tunnel Tiger Construction Limited (“the Contractor ”) was awarded a contract by Northern Powerhouse Rail Limited (“the Employer”) for the construction of a 10 m diameter railway tunnel linking Salford and Manchester (“the Works”).
A JCT 2016 Standard Building Contract With Quantities (SBC/Q) form of contract was signed by the Employer and the Contractor in respect of the Works. Incorporated into the Contract Documents was a ground investigation report including borehole data (“the GIR”).
In the length of the tunnel beneath Salford Cathedral the GIR identified “solid rock, laminated clay and glacial deposits” in the tunnel cross - section. The Contract Bills included an item relating to the excavation of reinforced concrete within that length of the tunnel with a measured quantity of 5 m3 that was priced by the Contractor at tender stage.
During the course of the Works, the Contractor uncovered a large reinforced concrete passageway running across the proposed route of the new tunnel beneath the cathedral. The Contract Administrator issued an instruction for the excavation and removal of the passageway “…in order that the Works can be completed…
The Contractor’s construction manager immediately mobilises heavy concrete breaking plant to site and sometime later submits an extension of time and loss and expense notice relating to the delay and additional cost that the Contractor would probably incur as a consequence of the prolongation and disruption caused by the removal of the culvert.
At a subsequent site valuation the Contractor’s graduate quantity surveyor includes an item under the Variation section for the excavation of 1000 m3 of reinforced concrete to the culvert (based upon agreed measurements taken on site with the Clerk of Works) using the rate in the Contract Bills. The Quantity Surveyor rejects the rate on the basis that: “the rate is too high and was clearly a mistake in the Contractor’s tender…” and that, in accordance with the contract, the Quantity Surveyor will determine “a fair rate”.
At the monthly progress meeting the cost overruns and delays relating to the Works are reported. The Employer’s project director turns to the Contract Administrator and states “ You need to follow the Quantity Surveyor’s approach - we are not having another Crossrail situation here”
The Contract Administrator subsequently writes to the Contractor regarding the extension of time and loss and expense notice stating:
“I refer to the time and money issues associated with the removal of the reinforced concrete passageway. I have discussed this matter with the Employer and, in his opinion, he believes that you should have realised that there was a likelihood of you encountering reinforced concrete given the industrial nature along the route of the tunnel and the fact that excavation and removal of reinforced concrete was measured in the Bill of Quantities.
In any event notices were not given immediately your construction manager became aware of the obstruction.
I am therefore unable to agree to any extension of time or loss and expense in respect of the concrete passageway
You are required to prepare a report which provides advice to the Contractor in relation to the contractual position with regard to the following:
a) Whether the Contractor is entitled to be paid additional monies in respect of the excavation and removal of the reinforced concrete and, if so, what the basis of the valuation should be. (800 words)
b) Whether, in principle, the Contractor is entitled to an adjustment to the Completion Date and to payment for loss and expense in respect of the obstruction. (800 words)
Your advice should be fully supported by reference to the relevant provisions of JCT SBC/Q 2016 together with relevant cases and any authorities in statute (if any) which should all be cited and referenced in accordance with the Harvard (APA 6th) style of referencing.
Short Introduction (that focuses on the task would be good) setting out what you are going to do.
This is a JCT SBC/Q 2016 contract
Go and look at clauses 5.1 and the Valuation Rules at 5.6 of JCT SBC/Q 2016.
What about the alleged pricing error
Use defined terms consistently Relevant Events, Relevant Matters etc
Explain the notices point better – Obrascon / Thorn help
Knowledge and Understanding:
1. Demonstrate a theoretical and practical understanding of the reasons why disputes arise in the construction industry and the various mechanisms for avoiding and resolving them.
2. Explain the various principles of substantive law which are relevant to disputes in the construction industry.
3. Demonstrate an understanding of how these legal principles influence professional practice within the industry.
4. Apply relevant principles of law to a range of problem scenarios and provide articulate and logical solutions.
5. Critically evaluate the appropriateness of current professional practice in the context of relevant legal rules and identify areas requiring reform.
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