Professional Practices - II 1

1. INTRODUCTION OF THE PROJECT:

NAME OF THE PROJECT: Construction of Ring Road Bypass from

Salimgarh Fort to Velodrome Road (SH: Construction of Flyover/ Stilted
Portion etc from Ring Road and Velodrome Road Junction (RD 0.00) to back of
Rajghat Power Station (RD 1+800): PACKAGE:1

CLIENT/ EMPLOYER: Public Works Department (P.W.D.), New Delhi

CONTRACTOR: M/S Simplex Infrastructure Ltd.

STRUCTURAL CONSULTANT: M/S B & SES Consultants

PROJECT COST: 157.5 Crores

EARNEST MONEY DEPOSIT: 1.67 Lakhs

SECURITY DEPOSIT: 5% of the tendered amount

PERFORMANCE GUARANTEE: 5% of the tendered amount

DATE OF COMMENCEMENT: 29th January, 2009

DATE OF COMPLETION: 28th July, 2010

STIPULATED TIME FOR COMPLETION OF THE PROJECT: 18

Months

PURPOSE OF THE PROJECT: This project is mainly to divert the traffic

and thus reduce the traffic congestion near the indoor stadium.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 2

2. Ambiguities in Contract Clauses

2.1 AMBIGUITY NO. 1
Defect Liability Period:

Original Clause
The contractor shall be liable for rectification of defects in structure and all
components of the Project for a defect liability period of 1 year after
completion of the project. Nothing extra shall be paid on this account. The
Engineer-in-Charge shall give notice to the Contractor of any Defects before
the end of the Defects Liability Period, which begins at Completion as
recorded by Engineer-in-Charge and ends after one year. Such notice shall not
absolve the contractors from his responsibility to find out the defects
independently. The Defects Liability Period shall be extended for as long as
Defects remain to be corrected. Every time a defect noted, the Contractor shall
correct the notified Defect/Defects within the length of time specified by the
Engineer-in-charge. Contractor shall review and submit maintenance reports
on monthly basis to the Engineer-in-Charge.

Further a maintenance period of 4 years is required by the department which

shall be payable as per BOQ item or as per DSR-2007 except the items of
Bituminous work. The maintenance period shall start after the defect liability
period. The Contractor shall do the routine maintenance of the project
components including roads, pavement, road sides and cross drains including
surface drains and keep the entire road surface and structure in Defect free
condition during the entire maintenance period which begins at Completion of
defects liability period.

The routine maintenance standards shall meet the following minimum

requirements that are not exhaustive and the contractor shall remain liable for
rectification of all defects.

i) Potholes on the road surface to be repaired soon after these appear or

brought to notice either during contractor's monthly inspection or by the
Engineer-in-Charge.

ii) Road shoulders to be maintained in proper condition to make them free

from excessive edge drop offs, roughness, scouring or potholes.

iii) Cleaning of surface drains including reshaping to maintain free flow of

Water.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 3

iv) Cleaning of culverts and pits for free flow of water.

v) Any other maintenance operation required to keep the road traffic worthy at
all time during the maintenance period.

vi) Regular inspection of bearings, expansion joints, etc.

vii) Regular inspection of main flyover lighting and fixtures and painting if
required

viii) The Engineer-in-Charge may issue notice to the Contractor to carry out
maintenance of defects, if any, noticed in his inspection, or brought to his
notice. The Contractor shall remove the defects within the period specified
in the notice and submit to the Engineer-in-Charge a compliance report.

Uncorrected Defects
If the Contractor has not corrected a Defect pertaining to the Defect Liability
Period, to the satisfaction of the Engineer-in-Charge, within the time specified
in the Engineer-in-Charge's notice, the Engineer-in-Charge will assess the cost
of having the Defect corrected, and the Contractor will pay this amount, on
correction of the Defect.

Ambiguity
It does not state how long the Rectification carried out on the defect should
last. If a defect were to occur towards the end of the Liability Period, the
Contractor could get away with low quality work and rectify the damage again
during the Maintenance Period allowing him to recover costs for the same
from the Client.

Rectification
Addition of a Clause which states the duration for which a Rectification should
last when carried out within the Defect Liability Period.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 4

2.2 AMBIGUITY NO 2

Site Conditions
Original Clause
Site conditions given hereunder and elsewhere are given as guidelines and
contractor shall satisfy himself regarding all aspects of site conditions and no
claim will be entertained on the plea that the information supplied by the
department is erroneous or insufficient or at variance with site condition.

Ambiguity
Use of an Exemption Clause

Rectification
This is a Clause generally found in Indian Tenders. It needs to be rectified
because it amounts to being an Exemption Clause.
The Rectified Clause should be:
Site conditions given hereunder and elsewhere are given as guidelines and
contractor shall satisfy himself regarding all aspects of site conditions and
claims will be entertained only if the information supplied by the department
is erroneous or insufficient or at variance with site conditions to a large extent
(or in terms of % of cost difference it would cause).

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 5

2.3 AMBIGUITY NO 3

Site Conditions
Original Clause
The PWD will bear no responsibility for the lack of any knowledge and also
the consequence thereof to the contractor. The information and site data shown
in the drawing and mentioned herein and elsewhere in these tender documents
are furnished for general information and guidance only. The Engineer-in-
charge in no case shall be held responsible for the accuracy thereof or/and
interpretations or conclusion drawn there from by the contractor and no claim
shall be entertained whatsoever if the site conditions/information is different or
otherwise incorrect as it is presumed that the contractor has satisfied himself
for all possible contingencies, situation, bottlenecks and acts of co-ordination
which may be required between the different agencies.

Ambiguity
Again an Exemption Clause has been used. It is unfair to put all of the Client’s
risk on the Contractor. The PWD has to bear responsibility and accountability
for its actions/information/drawings/data.
Rectification
There has to be a Clause which states the extent to which the Risk factors can
be shared and what basis will be used to distribute expenses for any change in
schedule or construction work due to variances observed on site. This has to be
in line with Natural Justice.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 6

2.4 AMBIGUITY NO 4

Materials found at Site

Original Clause
However, all fossils, coins, articles of value or antiquity and structures or other
remains or things of geological or archaeological interest discovered on the
site shall be the absolute property of the Department and the contractor shall
take reasonable precautions to prevent his workmen or any other person from
removing or damaging any such articles or valuables and shall immediately
upon discovery thereof and before removal, acquaint Engineer-in-Charge and
obtain his directions as to the disposal of the same at the expense of
department.

Ambiguity
Fossils, Coins Articles/Structures of Value, Antiquity etc are not Property of
the PWD, Commonwealth Project Division. They should be handed over to the
Indian Government or any other relevant authority.

Rectification
However, all fossils, coins, articles of value or antiquity and structures or other
remains or things of geological or archaeological interest discovered on the
site shall be the absolute property of the Indian Government or any other
Relevant Authority as decided by the Engineer – In – Charge and the
contractor shall take reasonable precautions to prevent his workmen or any
other person from removing or damaging any such articles or valuables and
shall immediately upon discovery thereof and before removal, acquaint
Engineer-in-Charge and obtain his directions as to the disposal of the same at
the expense of department. The material belonging to other agencies/ local
bodies, if recovered during excavation, shall be handed over to them, if
required by them.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)

 Professional Practices - II 7

2.5 AMBIGUITY NO 5

Particular Specifications
Original Clause
Unless otherwise expressly stated to the contrary either in Schedule of
Quantities or elsewhere in this Tender, the method of measurements as
generally laid down in the CPWD and/or MORT&H specifications, shall be
applicable for this contract.

Ambiguity
2 Sets of Specifications have been provided to be followed. There could be the
possibility of any Conflicts between the two. Order of Relevance/Precedence
should be provided.

Rectification
Unless otherwise expressly stated to the contrary either in Schedule of
Quantities or elsewhere in this Tender, the method of measurements as
generally laid down in the CPWD and/or MORT&H specifications, in
respective order of precedence, shall be applicable for this contract.

Aayushi Agarwal (UC 0106) Karan Deshmukh (UC 1106)