1、DIAR DUSHANBE PROJECT PHASE 1Our Ref: SHY/DDP/PE1/12/113 Date: November 3, 2012To: Mr. EngineerCC: IMS & the EmployerSubject: Commencement Date to be amended Contract ID: 55002348 Construction of Diar Dushanbe Project - Phase1The letters/emails to be referred as follows in such chronological order:1
2、) Ref No. QDT/2012-74 dated on 30th July 2012 (Kick-off meeting held on 19th July 2012)2) Ref No. QDDP-IMS-SNH-120731-594 dated on 31st July 2012 ( meeting on 26th July 2012)3) Ref Email Sent by Cadas Evren Bayrak, PMP dated on 26st July 2012 at 18:30:49 Time4) Ref Email Sent by Chen Shijun dated on
3、 31st July 2012 at 15:01:46 Time5) Ref Email Sent by Grace Man-fen Chang dated on 31st July 2012 at 16:27:22 Time6) Ref Email Sent by Cadas Evren Bayrak, PMP dated on 31st July 2012 at 17:53:14 Time7) Ref Email Sent by Cadas Evren Bayrak, PMP dated on 1st August 2012 at 22:20:47 Time8) Ref No.QDT/20
4、12-077 dated on 6th August 20129) Ref. Bank of China requesting for Arab Bank Doha Branch to issue the PB 10th August 2012 10) Ref No. QDDP-IMS-SNH-120816-630 dated on 16th August 201211) Ref No. SHY/DDP/PE1/12/016 dated on 20th August 201212) Ref No. QDDP-IMS-SNH-120817-647 dated on 21st August 201
5、213) Ref No.QDT/2012-090 dated on 23rd August 201214) Ref No. the Notice to reject issuance of PB given by the Arab Bank Doha Branch 31st August 2012 15) Ref No. QDDP-IMS-SNH-120904-694 dated on 4th September 201216) Ref No.QDT/2012-95 dated on 12th September 201217) Ref No. QDDP-IMS-SNH-120913-714
6、dated on 13th September 201218) Ref No. QDDP-IMS-SNH-120919-733 dated on 19th September 201219) Ref No. SHY/DDP/PE1/12/049 dated on19th September 201220) Ref No. QDDP-IMS-SNH-120921-746 dated on 21st October 2012_Dear Sir,Retrospectively, it is very lengthy process to finalize the Performance Securi
7、ty since from the issuance of LOA with the following key scenarios:1. The Employer has provided us the new template for Performance Security on the Kick-off meeting held on 19th July 2012. Subsequently, we exchanged our points of view with the relevant staff of the Employer focusing on whether the a
8、ssignment of the Bond might be amended with some additional conditions so as to mitigate the unknown risks. 2. The confirmation of the template for PB was given by the Engineer on 1st August 2012 after many mutual communications. We noted that the final version of the template is consistent with the
9、 specimen given on the Kick-off meeting. It is also worth emphasizing that the item9 in the specimen “this Guarantee shall be governed by and construed in accordance with the laws of the Tajikistan. The courts of Tajikistan shall have exclusive jurisdiction to settle any dispute arising from or rela
10、ting to this Guarantee” is totally inconsistent with the example form of Performance Security annexed in the RFP, wherein stated that “this Bond shall be governed by and construed in accordance with the law of Qatar.” Please refer to your letter Ref No. QDDP-IMS-SNH-120817 -647 dated on 21st August
11、2012 and you also duly noted such revision against the original one. Meanwhile, the Arab Bank PLC. According to the Minutes of Kick-off meeting 3.2 “Such Bond from a Bank based in Qatar, e.g. the Bank which issued the Tender Bond will be considered acceptable to the Employer”, hence, we recommended
12、the Arab Bank Doha Plc. Qatari Branch which is the issuing bank for TB to issue the PB to the Employer. The Bank has been accepted by the Employer through the email sent by Cadas Evren Bayrak, PMP dated on 1st August 2012 at 22:20:47 Time.3. Nevertheless the specific conditions precedent in LOA, the
13、 Engineer issued the NTP on 6th August 2012 as per the Ref. 8) and stating that the Works will be commenced on 15th August 2012.4. On 10th August 2012 the Bank of China requested the Arab Bank PLC Doha Qatari Branch to issue the Performance Guarantee through the Ref.9) as mentioned above. 5. On 16th
14、 August 2012, the Engineer notified us that “the right of access to and possession of the Site has been withheld until the date on which the Performance Security is received by the Employer.” through his letter Ref. 10).6. The Eid Al-Fitr holiday starts from August 16 and consequentially, the Arab B
15、ank Doha Branch will not be working during this holiday of nine days, which resulted into the progress of PB being temporarily suspended. You understand that it is an excusable delay Event as it is beyond control of the Contractor. 7. On 20th August 2012 we kindly requested the Engineer to positivel
16、y evaluate the actual circumstances and revise the timeline. The Engineer remained his position unchanged. Please refer to the Refs 11) 120 &13). 8. On the weekly coordinating meeting held on 30th August 2012, we timely informed that the issuance of PB has been rejected by the Arab Bank as he claime
17、d the high risks in the Country where the works are being executed. The Bank has also confirmed in writing for such rejection on 31st August 2012, wherein stating that “please be informed that we release you as we do not have the limits to issue the Guarantee for the project in Tajikistan”. Please r
18、efer to the Ref. 14) & 15). At that juncture, we have no choice but to pursue the alternative Bank immediately. Definitely, such Event would be unforeseen by any experienced Contractor. According to the definition 1.16.8 “unforeseeable”means not reasonably foreseeable by an experienced Contractor by
19、 the date for submission of the Tender”, nobody would foresee that the Bank which already issued the TB at the earlier state rejected to issue the PB for the same project. The reason of rejection is somehow attributable to the revision of Guarantee related to the applicable laws to be governed. Appa
20、rently, such problem/blame should not be solely apportioned to the Contractor. 9. Subsequently, we again recommended the ICBC Doha Branch for the Employers evaluation and the same has been conditionally accepted by the Employer through the meeting held on 12th September 2012 in QDs Headquarter. Ther
21、eafter, the duly signed and stamped PB has been submitted on 19th September 2012 and accordingly, the handing over of the Site has taken place on 21st September. In view of above-elaborated scenarios, we would like to highlight the followings for your attention: According to the Letter of Acceptance
22、 3 -quote “You are not authorized to commence with the Contract Works until a Notice to Proceed (NTP) letter is issued to you in accordance with Sub-Clause 8.1 of Conditions of Contract. Issuance of the NTP is subject to the followings requirements:i) Submission of Performance Security within 28days
23、 from the date of this letter, and acceptancethereof by the Employer: andii) Submission of necessary insurance, as stipulated in the subject AFP.”-unquote. It essentially implies from the bold & underlined wording that there do exists two conditions precedent of issuance of the NTP viz.i) when the E
24、mployer had accepted the Performance Security in a approved form submitted by the Contractor in due course;ii) when the Employer had received the necessary insurance policies along with the effect ofevidencing documents as per the stipulations of RFP. Of course, the timeframe within 28days from the
25、date of the LOA should be abided accordingly, but once any excusable delay event which is not only part of the default of the Contractor occurred, the Engineer should consequentially look into the same with due diligence and reasonably determine the extended time for submission of such documents to
26、the extent that the finalization between the Contractor and the Employer could be foreseen. As long as the Employer has not yet received & accepted both the Documents, the NTP for the Project shall not be issued. Unfortunately, the Engineer has issued the NTP on 15th August 2012 regardless of the co
27、nditions precedent to Commencement under the Contract, which is not acceptable to the Contractor. Under such circumstance, we hereby propose to amend the NTP as follows:l 20th September 2012 shall be defined as the date to commence the Works as per Sub-Clause 8.1 of GCC, by when the Employer has rec
28、eived and conditionally approved both the Documents. Subsequently, the Engineer has handed over the Site to the Contractor on 21st September 2012. l Extension of Time equivalent to such duration which is elapsed from 15/8/2012 to 20/9/2012. Hopefully, the matter in this regard could be dealt with hi
29、gh priority by the Employer/Engineer and the agreement could be amicably reached in due course and in due time. Assuring you of our best cooperation at all times, as always.Yours faithfully,Project Manager of Construction of Diar Dushanbe Project Phase 1Enclosures: All the references as listed hereabove.CC:
