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ASSIGNMENT

#1
[FOOLPROOF
MUHAMMAD FAIZAN YOUSUF
CE-082
CONSTRUCTION
CONTRACT AN
ATTEMPT TO WRITE
A NO- EXTRA
CONTRACT]
SUBMITTED TO DR. RIZWAN FAROOQUI.

PROF. RIZWAN

CE545 NED EM

FAROOQUI, PH.D.

NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY


DEPARTMENT OF CIVIL ENGINEERING
SPRING 2016

CE 545-CONSTRUCTION CLAIM MANAGEMENT


ASSIGNMENT # 1
Read the Foolproof Construction Contract An Attempt to Write a No-Extra
Contract handout.
1. Outline the mistakes made by each party: Architect, Project Owner, and
Contractor.
1) Architect
The architect (Eugene Flynn) and engineer (Gerald Hill) who have been
hired for the duty were being associated with the owner (Baker/Doyle)
for quite some time and have been dealing in the projects of
supermarket.
As negotiated among them, the design was initiated and then
completed by Flynn/Hill and was subjected to the approval by the
building authority and the client. The major concerned that they could
have emphasized more at the time when design was not prepared
should have been the soil test. They had asked Baker/Doyle about the
soil test, but their negation should not have persuaded them that early.
As the soil test plays an important role in the design of a structure and
if the bearing capacity of the soil is not certain, it might lead to a
vulnerable structure ahead.
Hence, this issue seems to be erupted sooner or later as the
proceeding on the project would come along.
2) Project Owner
Baker/Doyle has purchased the property to build a supermarket of
Frugalmart stores. They got the design ready from Flynn/Hill and hired
Lee-Noonan, experienced contractors to build for them.
The contract was agreed between the parties with reference to AIA
Document A201, Fourteenth Edition (1987) General Conditions of the

CE545 NED EM

FAROOQUI, PH.D.

PROF. RIZWAN

Contract for Construction, where the basis of payment is a Stipulated


Sum.
Everything was going smooth until the inspection team from the
building department interfered that took 22 days to settle their
reservation. Their reservation had some justification as there was not a
proper soil investigation carried out earlier in the project.
The obvious mistake by Baker/Doyle was that, they were told on the
very first day about the several feet of old fill soil over most of the
project site by the real estate agent, which was taken for granted by
them and hence became the major cause of tiff between the parties.
3) Contractor
Lee-Noonan being the contractors on the project was quite euphoric in
delivering to their best in order to fulfill the comradeship with
Baker/Doyle.
That has made them to tie up in the contract without giving due
consideration to the changes or extra work that may come across.
The mistake on their part was that as being a reputed contractor they
should have known that a construction project inevitably have changes
or extra work coming in as always. One cannot be certain that there
would not be any variations foreseen over the course of the project.
Noonan who has prepared the contract should have included the
clause that fit the best to both the parties on any extra work.

2. Assuming you are the Contractor or the Owner (choose only one):
a. Defend your position with respect to this case (i.e. why you are entitled to a
ruling by the court in your favor, if the case was pursued through a litigation
process).
b. What are the weaknesses in your position that may jeopardize a ruling in your
favor (entitlement)?
a. Being an owner, the defending points to get the case in
our favor would be:
The Screening process by the panel has to be begun while
reviewing the contract first. So in the contract provisions it is

CE545 NED EM

FAROOQUI, PH.D.

PROF. RIZWAN

explicitly stated that there would not be any reimbursement or


compensation of extra work. As the provision states It is
contemplated between the parties hereto that there will be no
extra costs arising from the work of this contract.
The point mentioned above would be enough to make a reasonable
justification in our favor (being an owner), as on the issue the
contract holds true and its not null or void. The other supporting
point could also be;
The entity who has drafted the contract, he should have given
some flexibility for them self in the contract albeit it was agreed
by both the parties but it drives some negativity to the one who
has drafted.
As the case is, Noonan (Contractors representative) can be seen as
the guilty person who being a law professional has drafted such a
contract that may proof to be the point leading to entitle the ruling
against the contractors.
b. The weakness on our side (being an owner) on the issue
would not be that substantial in leading the decision of
the case against us. But the vulnerable points may be;
The architect/engineer, if they are brought to the scene and if
acting impartial then they can disclose the fact that soil
investigation was suggested by them to the client/owner earlier
in the project. But that did not happen and this is what being the
major cause of rift.
Though its a valid point but there is not any documented evidence
of this as it was all being shared verbally at first and secondly
Engineer/Architect who were hired by the owner were the ones who
had been associated with them in previous supermarkets projects
as well. So there is a strong chance of them being biased on the
issue as they would never want to cut the business that is offered
by Baker/Doyle (Owner) to them.