Adverse Physical Conditions in a Dredging Contract
The assessment of a dredging projects soil conditions are the most important factor to determine dredgeability, the choice of suitable equipment, production rates and ultimately the associated costs for the works.
A prudent tenderer when analysing the site data needs to be assured that the data has been collected and prepared by a competent soil investigation company in accordance with relevant international standards such as BS, ASTM or others.
Rather than rely on the basic adverse physical conditions clause in the case of significant capital works involving excavation of varying subsoil, weathered or solid rock it is suggested to apply reference conditions in the Contract based on the actual information from the soil survey transposed into production rates which can be easily measured and reviewed, beyond which the Contractor is entitled to claim for additional compensation.
Of the contracts available for use on dredging contracts only the FIDIC 1999 Red Book and the UK’s NEC 3 Engineering and Construction Contract deal with the broad concept of reference conditions.
The concept of how adverse physical conditions are dealt with verges on the holy grail of marine infrastructure projects. On the one side they are part of a Marine Contractors ‘must have’ clauses whilst it is often viewed by Clients as the equivalent of a ‘get out of jail free’ card. The balance of risk has been hotly debated and fought over the years with the results little published or revealed due to disputes being resolved in arbitration or adjudication.
Added to this mix are the notion of unforeseeability and what an experienced contractor can expect its no wonder that the vast majority of marine infrastructure claims revolve around the issue of sub-surface conditions.
Even a full-scale and technically perfect soil investigation can only test a fraction of the volume that is to be dredged by the Contractor. Combined with the fact that natural conditions like rock strength, grain size, permeability, plasticity, presence of rock outcrops or boulders (to name a few) vary enormously, it is no wonder disputes on dredging contracts often focus on soil conditions that are claimed to be different from what “an experienced Contractor could reasonably have foreseen” .
The basic principle of adverse physical conditions this that a contract clause will give the Contractor the “right to claim for additional time and money in case unforeseeable physical conditions which may occur, which were not reasonably foreseeable by an experienced contractor”. This simple principle is present in one way or the other in virtually every dredging contract.
A dual purpose lies hidden behind this contract principle, namely to :
- Compensate the Contractor for encountering conditions more severe than could be derived from investigations available at the time of preparing his offer. Employers must not and should not expect the Contractor to gamble: Taking a risk provision covering for every imaginable situation would make an offer non-competitive, whereas the absence of a risk provision is a denial of the fact that dredging has significant uncertainties by its very nature. Employers tend to be overly biased towards achieving the lowest contract price for their work by passing all conceivable risk to the Contractor whether he is in a position to dealt with it or not.
- Protect the Employer from Contractors who may try to claim additional compensation for interpretation or calculation errors mistakes made by the Contractor and resulting in a loss on the project. A loss in itself is no justification for additional compensation, and furthermore the Employer has very limited possibilities to assess the factual cause of the loss.
In between the relative simplicity of the two extremes lies a gray area, and it is here that disputes are generally fought out. The author supports the view that a sufficiently high threshold for additional compensation should be present, balancing the interest of the Employer (by not having to battle over every minor issue) and of the Contractor (by having capped his risk and defined additional compensation above threshold). It is further suggested that a risk matrix framework could be established to assess the magnitude of the additional compensation before award of the contract.
For more info on dredging contracts, and maritime contracts, kindly visit Kinlan Consulting, a specialist FIDIC Contract Consultant.
Sphere: Related ContentMake it a Green Christmas and Stockpile Love not Landfill this Year
A mountain of Christmas gifts and goods make their way from outlets and into homes each Christmas season. Unfortunately, not long after the festivities subside, nearly all of those often well-intentioned gifts move quickly on to mounds of landfill.
Slowing the migration is as easy as setting your family the Green Christmas Challenge to send as little as possible to landfill this Christmas. Inspired by the target of a approximately empty wheelie bin, you will all make decisions that generate less waste.
Many actions help with celebrating a green Christmas, like opting for locally-grown foods to reduce food miles, switching to LED eco Christmas lights and donating gifts to charities. The massive amount of food, plastic and non-recyclable waste is the main environmental problem, but it is an easy one for eco friendly households to tackle.
Sit the team down before Christmas and discuss ways to reuse, reduce and recycle. Here are some ideas you started…
Eco friendly plastic-free picnics
Disposable plastic plates and cups are created from petrochemicals, so pollution is in their manufacture and when thrown-away they sit in landfill forever. Choose reusable plates that you wash up or use palm leaf plates, a stylish plant alternative. They add a chic eco friendly style to your festive table and can be put onto your garden as mulch, instead of in the bin.
Trim a living tree
When Santa arrives in his carbon-neutral sleigh, surprise him with a live Australian Wollemi pine tree. This recently discovered old-fashioned tree is now for sale in nurseries. A potted Wollemi can grow with your family to be trimmed year after year. Or, why not make it a tradition to find a lovely Eucalyptus branch that can be composted when the Christmas festivities are over.
Wrap it again
A fantastic way to stretch the budget and save piles of waste is to wrap presents in newspaper, magazines and even junk mail. For children use the comics, for car lovers use the motoring pages. wrapping, place gifts inside reusable shopping bags, or sew cloth bags from festive Christmas material that your family can re-tie with ribbon every year. For an extra special Green Christmas touch, Earth Greetings make stunning post consumer waste wrapping paper with Australian Christmas designs printed with vegetable inks.
Detour past the bin
, is this Christmas gift likely to wind up in the bin within a couple of weeks? If yes, opt for something else. The old saying quality not quantity is a great friend of the planet. Even the cheapest items use the planet’s limited resources, energy and water to manufacture. Instead of buy a risky gift, regard a gift voucher or make a donation to a charity on behalf of the individual. Should you receive an unsuitable gift, pass it straight on to a charity like the Salvos.
A green Christmas gift for your garden
Food scraps make up a huge portion of rubbish and once in landfill they generate methane, a concentrated greenhouse gas. Compost at home instead and turn leftovers into fertiliser for your garden. The Bokashi composting bin is a popular system that sits conveniently in your kitchen.
Packaging-free paradise
Picture a paradise where Christmas morning is free from mounds of discarded plastic packaging. It just takes a little extra thought and effort. Locally made and hand-made Christmas gifts are less likely to be over-packaged. A trip to the local Farmer’s Markets will also you stock up on fresh festive food with minimal packaging.
Rather than talking rubbish; this Christmas, your family will soon be asking is this for landfill, recycling or composting? And the joy of attaining your challenge will bring good tidings to all.
Biome Eco Stores is a chic retail outlet with a conscience. Firmly committed to eco friendly principles, Biome offers a unique and meaningful green Christmas collection for gifts and decoration.
Sphere: Related Content