7/4/2016

RICS APC Guidelines

RICS/AIQS APC - 2016 Session 2
Requirements & • General guidelines for all pathways
Contract Practice & Competencies • Introduction of the APC
• APC pathway requirements
Contract Administration (Aug 2015) • Competency definitions

Date : 17th June 2016

• Generic guide for all APC membership
Time : 8.00am - 12.00pm routes
Venue : Al Futtaim Training Centre, Dubai Candidate Guide • Entry requirements
(Aug 2015, • Key elements of APC
By : Chamil Rajapakse • Training/CPD/Rules of Conduct
MENA)
PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA • Summary of Experience/Case Study
• Final assessment

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

RICS APC Guidelines Competencies

• Guide for each pathway
• Overview of APC under QS and Construction • Personal, interpersonal,
Pathway Guide pathway professional practice and business
(QS and • Pathway requirements Mandatory skills common to all pathways and
Construction) • Competency guidance compulsory for all candidates
• Profile of a Chartered QS
(Feb 2015)
• Selecting Optional Competencies
• Study Check List
• Primary skills of your chosen APC
Core pathway

MyAPC Candidate
Supplementary • MyAPC - online platform for RICS candidates
• How to fill in your passport • Additional skill requirements
Guide
• How to progress in various stages of APC selected by the candidate from a
(Apr 2015) Optional list of competencies relevant to
chosen pathway

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Levels of Attainment Competencies - QS Pathway

Mandatory Core Optional

Accounting Commercial Commercial

Principles Management / Management /
Cost Planning Cost Planning

Business Planning
Contract
Conflict Avoidance Contract Admin
Practice
Level 1 Level 2 Level 3 Data Management
Conflict Avoidance

Sustainability
Application of Reasoned advice Construction Tech Insurance
Knowledge &
knowledge & and depth of Teamworking
Procurement
understanding Risk Management

understanding knowledge Client Care

Financial Control Project Evaluation

Communication
Quantification Programming

Health & Safety

Capital Allowance

Professional
Practice Corporate Recovery

Due Diligence

BIM

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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Contract Practice Principles of Contract Law

Contract Administration
 What is a Contract?
1. Principles of Contract Law 11. Material On/Off Site
A legally binding agreement with specific terms made between two
2. Legislation 12. Retention - Retention Bonds
or more parties in which there is a promise to do something in
3. Standard Forms of Main and Sub 13. Change Procedures, Valuing return for a valuable benefit known as consideration.
Contracts Change
Ref: http://legal-dictionary.thefreedictionary.com/contract
4. Roles and Responsibilities of Parties 14. Extension of Time
5. Assignment / Novation 15. Claims, Loss and Expense
 Form of Contract
6. Letter of Intent 16. Dispute Avoidance & Resolution  Oral
7. Performance Security - Bonds, 17. Named / Nominated Subcontractors  Written
Parent Company Guarantee 18. Sectional Completion / Partial
8. Advance Payments Possession  Terms of a Contract
9. Insurances 19. Determination / Termination  Express Terms
10. Interim Valuations and Payment 20. Liquidated & Ascertained Damages  Incorporated Terms (By notice or by course of dealing)
Provisions 21. Defects Rectification Period  Implied Terms

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Principles of Contract Law Principles of Contract Law

 Elements/Principles of a Contract  Contracts from Employer’s/Contractor’s Point of View
 Offer (Oral, Written or by Conduct) – Offeror/Offeree (Benefits/Obligations/Rights/Liabilities)
Invitation to treat vs offer / Revocation of offer /
Termination of offer  Construction Contract Documents
 Acceptance (Oral, Written or by Conduct)
Must meet offer / Counter-offer / Silence  Important areas to be covered
 Consideration (Sufficient not adequate, Past
consideration)  Contents/ Parts of a Construction Contract Documents
 Intention to create legal relations (presumed in
commercial ag)  Key differences between Tender and Contract Documents
 Legal capacity (Minors-Article 158, Mentally Incapacitated-
Article 169, Companies)
 Priority of Contract Documents - why?
 Legality (Article 127 of Federal Law No 5 / 1985)
• Discrepancies vs ambiguities
 Good faith and fair deal (Article 246 of Federal Law No 5 /
1985) • Contra Proferentum Rule

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Standard Forms of Main and Sub

Legislation
 Court Structure in UAE
Contracts
 Court of First Instance
 Court of Appeal (Points of Facts & Law)
 Court of Cassation (Dubai) / Federal Supreme Court (Abu Dhabi)  Types of Standard Forms of Contracts
(Points of Law Only)

 Types of Law Systems  Types of FIDIC Forms of Contracts

 Common law system
 Civil law system
 Differences Between FIDIC 1987 & 1999 Red Book
 Important Law Provisions in UAE
 Arbitration - CPC - Law no 11 of 1992 Articles 203-219  Differences Between Your Contract and FIDIC
 Contracts - Federal law No 5 of 1985 / Federal law No 2 of 1987
 Labour - Federal Law no 8 of 1980
 Benefits of Standard Forms of Contracts
 General Provisions vs Mandatory Provisions

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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Roles and Responsibilities of

Assignment / Novation
Parties to a Contract

 General Understanding about Roles &  Assignment

Responsibilities of the Parties to a Contract

 Novation
 Roles & Responsibilities of a QS

 Construction is Team Work

 RIBA Plan of Work

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Performance Security - Bonds,

Letter of Intent
Parent Company Guarantee
 Performance Security / Bond
 Definition  Purpose
 Contractual Provisions / Value
 Issuing Institution
 Purpose  Specimen / Unconditional and on Demand
 Parent Company Guarantee
 Quantum merit principle  Purpose
 Liability
 Other Guarantees
 Retention
 Advance Payment

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Advance Payments Insurances

 Purpose of Advance Payments  Works

 Contractual Provisions  Third Party Liability (TPL)

 Workmen Compensation (WC)

 Advance Payment Guarantee
 Contractor’s Equipment
 Certifying Advance Payment  Professional Indemnity (PI)

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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Insurances Insurances
FIDIC FIDIC  Professional Indemnity Insurance
Type Amount Validity
1987 1999
 Remedy for Contractor’s Failure to Insure
Full Replacement Cost +
15% (Professional Fees
Clause Clause Until date of  Third Party Insurances by Employer
Works 21.1 18.2
+ Cost of Demolition +
issue of TOC
Removal of Debris)
% not stated in FIDIC 1999
 Umbrella Covers
Until any works
Third Party Clause Clause Amount stated in
Liability 23.1 18.3 Appendix to Tender
are carried out  Deductible
(up to DLC/PC)

Workmen Clause Clause Sum sufficient to cover

Until any persons  Cross Liability
are employed on
Compensation 24.1 18.4 liability under UAE law
the Works
 Subrogation
Contractor’s Clause Clause Sum sufficient to provide Until no longer
Equipment 21.1 18.2 replacement at Site required  Administration of Insurance Claims

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Interim Valuations and Payment

Material On/Off Site
Provisions

 Monthly Statement
 Certifying Material On Site

 Interim Payment Certificate

 Certifying Material Off Site

 Preconditions for Issuing IPCs

 Payment

 Interest

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Change Procedures
Retention - Retention Bonds
Valuing Change
 Change Procedures
 What is Retention?  Changes to Works
 Reasons for Changes
 Purpose of Retention
 Instructions (Clause 51)
 Percentage and Limit of Retention  Exception
 Change Management
 Application of Retention

 How Retention is Released?  Valuing Change

 Variations
 Retention Bond  Varied Works
 Valuation (Clause 52-FIDIC 1987 or Clause 12.3 FIDIC 1999)
Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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Extension of Time Extension of Time

 Climatic Conditions
 Types of Delays
 Why EOT?
 Solitary v Concurrent Delay
 Clause 44.1 - grounds for EOT  SCL Delay and Disruption Protocol
 Critical Path
 Clause 44.2 - notices and detailed particulars
 Mitigation vs Acceleration
 Clause 44.3 - determinations  Free Float vs Project Float
 Milestone
 Causal Link
 Types of Construction Programmes
 Delay Analysis Methods
Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Claims, Loss and Expense Claims, Loss and Expense

 Types of claims
 What is a Claim?
 Structure of a claim
 Clause 53.1 - notice
 Headings of a loss and expense claim
 Clause 53.2 - contemporary records
 Evaluation of costs
 Clause 53.3 - substantiation
 Expense - eg: additional costs to maintain site
 Clause 53.4 - failure of Contractor to comply facilities etc.
 Clause 53.5 - payment  Loss - eg: loss of opportunity to make profit
elsewhere due to Employer’s delay
Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Named / Nominated
Dispute Avoidance & Resolution
Subcontractors

 Dispute Avoidance
 Domestic Subcontractors
 Dispute Resolution under the Contract
 Named Subcontractors
 Other Mechanisms - ADR
 Nominated Subcontractors
 Advantages of Arbitration vs Litigation
 Employer’s Obligations towards Nominated SC
 Disadvantages of Arbitration vs Litigation

 Arbitration Awards

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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Sectional Completion / Partial

Determination / Termination
Possession
 Determination

 Sectional Completion  Ending Contracts

 Partial Possession  Frustration vs Force Majeure

 Requirements for issuing TOC  Clause 63 - Contractor’s Default

 Substantial Completion  Clause 69 - Employer’s Default

 Outbreak of War

 Antecedent/Anticipatory Breach
Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Liquidated & Ascertained

Final Accounts & Completion
Damages (LAD)

 Draft Final Statement  Liquidated

 Final Statement  Ascertained
 Discharge Letter  Liquidated vs Un-liquidated
 Final Payment Certificate  Value of LAD
 Final Payment  Advantages of a LAD/Penalty Clause
 Contract Completion

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

Defects Rectification Period Other Terms

 Time is of the Essence

 Patent Defects vs Latent Defects  Without Prejudice
 Repudiatory breach
 Why DLP is normally 12 months or more?
 Privity of Contracts
 Consequences of DLP  Collateral Warranty

 Liabilities of Contractor after DLC  Set-off

 Negligence
 Joint & Several Liability
 Letter of Credit

Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

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General Knowledge


Insolvency

Bankruptcy
THANK YOU
 Consequences of Letter of Acceptance &
 Consequences of Taking Over Certificate

 What is Contract Administration?

GOOD LUCK!
Chamil Rajapakse PgDip (Cons Law & Arb), BSc (QS) Hons, MRICS, MAIQS, ICECA

APC Requirements & Competencies APC Candidate Guide

Pathway Guide (QS and Competency Guidance

Construction) Contract Practice

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MyAPC Candidate Supplementary

Study Check List - Contract Practice
Guide

Articles from UAE Civil Code Articles from UAE Civil Code
Article 140:
Article 127:
(1) The acceptance must coincide with the offer.
A contract must not be concluded for commitment of an illicit
(2) If the acceptance exceeds the subject matter of the offer act.
or places a restriction on it or varies it, that shall be regarded
as a rejection containing a new offer.
Article 246:
(1) The Contract must be performed in accordance with its
Article 135:
contents, and in a manner consistent with good faith.
(1) No statement may be ascribable to a silent person;
however, silence in case of need is an expression and shall
be considered acceptance. Article 266:
(2) Silence shall, in particular, be considered an acceptance, (1) A doubt shall be resolved in favour of the obligor.
if there is a previous dealing between the two contracting
parties, whereby the offer is correlated to such dealing, or if Obligor - a person who owes or undertakes an obligation to
the offer tends to be in favor of the person to whom it is another by contract
made.

Articles from UAE Civil Code Articles from UAE Civil Code
Article 31:
A mandatory provision (of law) shall take precedence over a
contractual stipulation. Article 141:
(1) A contract may only be made upon the agreement of the
Article 218: two parties to the essential elements of the obligation, and
A contract shall not be binding on one or both of the contracting parties the other lawful conditions which the parties regard as
despite its validity and effectiveness if there is a condition that such essential.
party may cancel it without mutual consent or an order of the court.
Article 888/889:
Article 296:
If the price for the work is not specified in the contract a fair
Any condition purporting to provide exemption from liability for a remuneration together with value of materials provided
harmful act shall be void.
should be given.

Article 882:
Any agreement the purport of which is to exempt the contractor
or the architect from liability (decennial), or to limit such
liability, shall be void.

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Articles from UAE Civil Code Articles from UAE Civil Code
Article 892: Article 893:
A contract of muqawala shall terminate upon the completion If any cause arises preventing the performance of the
of the work agreed or upon the cancellation of the contract contract or the completion of performance thereof, either of
by consent or by order of the court. the contracting parties may require that the contract be
cancelled or terminated as the case may be.
Article 268:
The contracting parties may mutually revoke the contract by Article 273:
their mutual consent after it has been concluded. (1) In contracts binding on both parties, if force majeure
supervenes which makes the performance of the contract
Rule of thumb – termination of a contract would not be impossible, the corresponding obligation shall cease, and
justified where damages or compensation would be a the contract shall be automatically cancelled.
sufficient remedy for the injured party.

Articles from UAE Civil Code Articles from UAE Civil Code
Article 389:
If the amount of compensation is not fixed by law or by the Article 878:
contract, the judge shall assess it in an amount equivalent to the The contractor shall be liable for any loss or damage resulting from
damage in fact suffered at the time of the occurrence thereof. his act or work whether arising through his wrongful act or default
or not but he shall not be liable if it arises out of an event which
Article 390: could not have been prevented.

1) The contracting parties may fix the amount of compensation in

advance by making a provision therefor in the contract or in a
subsequent agreement, subject to the provision of the law.

2) The judge may in all cases, upon the application of either of the
parties, vary such agreement so as to make the compensation
equal to the loss, and any agreement to the contrary shall be void.

Articles from UAE Civil Code Articles from UAE Civil Code
Article 290: Article 292:
It shall be permissible for the judge to reduce the level by which an In all cases the compensation shall be assessed on the basis the
act has to be made good or to order that it need not be made good amount of harm suffered by the victim, together with loss of profit,
if the person suffering harm participated by his own act in provided that that is a natural result of the harmful act.
bringing about or aggravating the damage.

Article 291:
If a number of persons are responsible for a harmful act, each of
them shall be liable in proportion to his share in it, and the judge
may make an order against them in equal shares or by way of joint
or several liability.

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FIDIC Provisions Novation in Construction

FIDIC 1987 Red Book - Sub-Clause 3.1: Standard forms of Novation Agreements;
The Contractor shall not, without the prior consent of the Ab initio (from the outset) novation - City of London Law Society
Employer …assign the Contract or any part thereof, or any (CLLS) – Traditional, assumes the consultant worked for the
benefit or interest therein or thereunder, otherwise than by: contractor from the outset
Switch novation - Construction Industry Council (CIC) – Reality,
FIDIC 1999 Red Book - Sub-Clause 1.7 : recognizes that the consultant first worked for the Employer and
Neither Party shall assign the whole or any part of the Contract or then to the Contractor
any benefit or interest in or under the Contract. However, either
Party: When drafting of the novation agreements;
(a) may assign the whole or any part with the prior agreement of Suitable warranty for any losses arising out of services performed
the other Party, at the sole discretion of such other Party, and pre-novation
(b) may, as security in favour of a bank or financial institution, Avoid creating unnecessary conflicts of interest between the parties
assign its right to any moneys due, or to become due, under the Demarcation of services for the employer and the contractor
Contract. Standard of care - "reasonable skill and care" v "fit for purpose"

Cross Liability Subrogation

FIDIC 1987 Red Book - Sub-Clause 23.3: FIDIC 1987 Red Book - Sub-Clause 3.1:

The insurance policy shall include a cross liability clause such that The Contractor shall not, without the prior consent of the Employer
the insurance shall apply to the Contractor and to the Employer as …, assign the Contract or any part thereof, or any benefit or
separate insureds. interest therein or thereunder, otherwise than by:

(a) a charge in favour of the Contractor's bankers of any monies

due or to become due under the Contract, or

(b) assignment to the Contractor's insurers (in cases where

the insurers have discharged the Contractor's loss or liability)
of the Contractor's right to obtain relief against any other party
liable.

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