关于业主移交场地延误的索赔

案例说明：本工程中，由于当地法院的判决，业主败诉，导致我们的一个高架水塔的施工工地被起诉方收回。监理根据此消息，给我方发函通知该工地停止施工。但是在监理通知前，我方已经对该场地进行了物探并从1000多公里外动员钻机到该工地。所以，我方就工期和滞留费用进行索赔。这是利用合同寻找和监理以后谈判的把柄，并由此压制监理的嚣张气焰。往来信函比较多，我就主要的几封附在下面：

第一封函：主要是确认监理停止施工的指示，提出索赔意向。

Sub      :     STOP ALL WORKS INSTRUCITON FOR R3 NEW WATER TOWER IN CHOKWE

Dear Sir,

In accordance with Clause 30 and 32 of the Conditions of Contract, we are hereby to confirm received your representative’s written instruction regarding of stop all works at R3 New Water Tower Site in Chokwe on 22^nd June 2006.

According to the submitted Pilling Works Schedule on 15^th June 2006 and the discussion in the Fifth Monthly Site Meeting in your office on 21^st June 2006, we had started mobilizing all the machinery, personal, testing equipment, containers and construction materials to site. And due to your instruction, we have no choice but to stop our planned program and transport all those equipment to Maputo for standing by. We have to inform you that such an instruction will certainly delay the timely completion of whole project in Chokwe, and accordingly cause additional costs to us.

We would like to submit to your the following analysis for your review and approval:

1.        The duration of Project: We would request to extend our project’s duration accordingly as the same duration as the delayed by our client. See our submitted Pilling Works Schedule on 15^th June 2006;

2.        The additional costs: We have to claim the costs for the machinery, personal and materials, which are standing by. See attached detailed cost breakdown.

A.       Direct Costs:                                                                                       Amount (USD)

l        Machinery standing by costs, (see attached list).                       USD3, 840.00 per day;

l        Personals standing by costs, (see attached list).                       USD  480.00 per day;

l        Materials storage costs, (see attached list).                                      USD  170.00 per day;

l        Oil, electricity, water, foods, house renting and other costs +   USD  200.00 per day;

                                                                                    Total direct costs are: USD4, 690.00 per day

              B.   Plus Head office overhead, (10% of A)                           +     USD  469.00 per day;

              C. Plus Site overhead, (7.5% of A+B)                                   +     USD  386.92 per day;

                                                                                    Total costs are:             USD5, 545.92 per day

This calculation does not include the 17% of IVA and the calculation date was from the date of instruction.

Thank you in advance for your kind, fair and reasonable consideration of the duration and costs in this letter.

Yours sincerely,

第二封函：主要是针对监理的无礼要求，我方引用相应的合同条款，表明这是合同赋予我们的权力。

 

Sub      :     EARLY WARNING FOR THE R3 PILLING WORKS AND R3 ELEVATED TANK

 

Dear Sir,

 

Thank you for your letter Ref: 023 dated on 27^th June 2006. In accordance with Clause 32 “Early Warning” of Section B of Conditions of Contract, we shall warn the Project Manager at the earliest opportunity and provide the proposal of time and costs estimate. We would like to say that it is the contractor’s right to inform you as earlier as possible and we did.

 

By the way, we also would like to remind you the following clauses for your kindly review:

1.        According to sub-clause (ii) of (a) of 11.1 of clause 11 of Conditions of Contract, the negligence, breach of statutory, or interference with any legal right by the Employer is Employer’s risks; The local court in Chokwe had issued the Court Order to FIPAG regarding of the land.

2.        According to clause 21 “Possession of the Site” of Conditions of Contract, if the Employer did not give possession of the Site to Contractor, this will be a Compensation Event. Now It was almost seven months that we did not be provided the site of R3 elevated tank;

3.        According to sub-clause (a), (c), (g) and (j) of clause 44.1, clause 44.2 and clause 44.3 of clause 44 “Compensation Events”, the contractor have the right to claim the duration and additional costs.

 

According to your letter concerning the materials, the certified value of materials and the materials storage fee are not the same conception. Because of non-possession of the Site, we did not have space to storage those materials on site. For example, the concrete stone price will rise from USD12.80 per ton to USD17.00 shortly if we don’t purchase them earlier, enough quantities and storage them at right place.(if it necessary, we could provide to you the fax from our supplier). And due to the same possession problems, all the equipment and materials for those pilling and R3 elevated tank have no any other place to storage but Maputo and our Xai-Xai campsite.

 

Unless the client could provide us the site or rent a campsite in Chokwe for us to storage all the equipment and materials, we could cancel the storage fee but only charge the standing by costs for personal and equipment.

 

We had informed you in accordance with the submitted Pilling Works Schedule on 15^th June 2006 and on the Fifth Site Meeting in your office on 21^st June 2006 that we had started the mobilization from Beira to Chokwe on 21st June 2006. Due to the mobilization, your stop all works instruction for R3 site also means another demobilization and mobilization costs. We reserve the right to claim those costs, which were not included in our previous letter.

 

We would appreciate it if you could understand our position and make a fair decision, otherwise we would reserve the right and take the actions according to the Clause 24 “Disputes” of Section A of Conditions of Contract.

 

Your usual cooperation in this matter will be highly appreciated.

 

Yours sincerely,

 

 

 

第三封信：明确索赔工期和费用。这里面费用包括：于时间相关的管理费用和人员设备的滞留费用（量单里面有记日工的相应费率并且我们每月都提交当月的设备人员清单）；时间索赔包括：物探时间、打桩的时间还有修建高架水塔的时间。

 

实际上，这里面也暗含其它费用索赔的意思，就是由于索赔工期，表明我们不可能在合同工期内完成工程量，如果要我们在合同工期里面完成的话，监理必须给出我们加速施工令（由于业主原因引起的）。加速施工令就意味着业主要为该项工程要多付很多额外的加速施工引起的费用。－也算是合同的另外一个应用。

Sub      :     STANDING BY CHARGES AND TIME EXTENSION FOR CHOKWE R3 TANK

 

Dear Sir,

 

This letter is referent to your letter Ref: 164 and also our correspondences Ref: CGCMOZ/ C&X/M0065, M0069, M0072 and M0183. We thought you had misunderstanding our claims regarding the standing by charges and time extension, we had to inform you that:

 

1.        The time extension of Project:

l        The 99 days time extension are ONLY for R3 elevated tank construction duration but did not include the time of site geophysical test and the time of piles test. You could see from our schedule that our R3 schedule start from 22^nd December 2006 excluding of the site geophysical test and piles test. We did not include those activities in our R3 schedule, total claims of time extension should be 99 days plus 60 days for geophysical test and piles test.

l        The revised schedule is strictly based on the actual activities we are going to execute. As you know, the R3 elevated tank already had some major changes not only in numbers & diameters of piles but also the method of construction (now we are using columns support instead of wall support in original bidding drawings); Those changes are definitely effect the duration of construction. We would appreciate if you could count the time by the activities in schedule but not by your own estimation.

 

2.        The standing by costs:

l        The time related cost: The time related items we charge is USD737,500.00 / (18 X 30) = USD1,365.74 per day; Refer to Bill of Quantity, Section 1: PRELIMINARY & GENERAL including of the insurances for our project;

l        The standing by cost: we have to reiterate that the Plant, Personal was standing by all the time on site. The standing by charges we reduced from USD5,545.92 to USD2,764.21 per day. Refer to the previous correspondences: your letter, 018, 023, 029 & 105 and our letter, CGCMOZ/C&X/M0065, M0069, M0072 & M00182. Your attitude is totally unacceptable and we reserve the right to take further actions according to contract.

The total calculating time delayed will be 99 day + 30 days (Geophysical Test) + 30 days (Pilling test) = 159 days.

 

3.        The acceleration order: The activities for R3 elevated tank were delayed due to your stop instruction and client’s risk, it is not our responsibility to accelerate the project and you could not say to assist us instead of yourself. We will execute the R3 works according to the scheduled program if there is no acceleration order.

 

This calculation does not include the 17% of IVA and the calculation date was from the date of instruction. So we claim additional costs amount of USD(2,764.21+USD1,365.74)X 159 = USD656,662.05 due to your stop work instruction.

 

Yours sincerely,

 

 

小结：项目上，往往一点风吹草动都可能带来很大的机会和利润。在国际工程上，我个人的感觉：往往在危机中或者非常不利的气候灾难或者事故中都蕴含着巨大的机会和利润。比如：石油危机，工人工资增长，业主拖延付款，主要物价的变化等等。关键就看当时的具体情况和工程合同管理如何了。

 

但话又说回来了，要想索赔取得好的效果：首先要保证项目施工非常的好，这是基础；其次，也要考虑业主的承受能力，要有理有据，合情合理，不能无礼取闹。