Reference captionedsubject and the previous letters exchanged thereon as cited above in particularthe Employer’s letter dated 6-Dec-2021 as referenced ignoring our explanationand or challenges faced by the Contractor submitted through previous lettersand Request for Extension of Time for Completion dated 29-Nov-2021 in respectof the Progress Report.
We have carefullygone through the contents of your aforesaid letter and disagree with theposition taken by the Employer. Our point-wise response to the Employer is asunder.
Please note thatthe latest Revised Project Programme has been submitted through theContractor’s letter at the end of November. We hereby attached the RevisedProject Programme asAnnexure-1.
The Contractorhereby reiterates our stance that due to Covid-19 Pandemic duly claimed as theForce Majeure Event (As per the relevant provisions of the Equipment SupplyContract), it is beyond the Contractor’s control to achieve the Commercial Dateas per Project Baseline.
The Contractor hasfully discharged its obligations for notifying the Employer and mitigating thedelays, which were of such nature that the delays were imminent and could nothave been remedied despite our best possible efforts.
As such, theEmployer’s wording as “purported delay” is totally unreasonable and unacceptableto the Contractor, which ignored the Contractor’s contributions for the benefitof the Project.
1.Delay inCommencement of Preliminary Works
It has been clearlystated in our reply letter dated 1-Dec-2021 that the Contractor suffered delayand additional cost resulted from failure by the Employer to give 100% right ofaccess to the site. As a result, the local hindrance occurred and stopped usfrom implementing the preliminary works for a long time.
On the other hand,
it is well known that the design/drawings are the pre-requisites of project
construction, all the construction works are based on the availability of
drawings. Contractor appreciates Employer/NTDC’s efforts on drawing review and
approval, however the delay in approval of drawings has delayed the
construction works including the preliminary works[if !supportAnnotations][GW1][endif] .
As is known, theCovid-19 Pandemic already existed before the commencement of the Project. Allimposed prevention need to be followed by the Contractor which increased thedifficulties for execution of the works, and further delayed the progress.
2.InadequateDeployment of Requisite Resources
The Contractor hasdeployed sufficient resources on site as per the plan submitted along with Contractor’sreply dated 1-Dec-2021. As an experienced Contractor, we deployed the requisiteresources according to the site demand at different stages of the Project. Asthe Employer is aware of the shortage of the resources (workforce andmachinery) at Jhimpir District. All the resources should be deployed from otherdistricts. However, due to Covid-19 Pandemic, it’s difficult to arrange theresources since the restrictions were issued by local government all along theproject implementation. Not alone the delay of milestone payment from theEmployer, limited Contractor’s cash-flow which worsened the Contractor’sability to deploy sufficient resources. Absolutely, it constitutes the breachof Contract from the Employer’s side. The Contractor is entitled to an extensionof time and additional cost.
3.Delays in theRelevant Design Approvals
As per ourstatistics, the delay of approval of design is on Employer’s/NTDC’s account.Firstly, review duration is far beyond the stipulation defined in the contract.Secondly, excessive review rounds by the Employer and NTDC really existed.Further, regarding the follow-up of NTDC’s approval, the Contractor performedthe obligations on behalf of the Employer sending representatives to NTDCHQ-Lahore monitoring the approval process, even there is no contractualrelationship between the Contractor and NTDC. For detailed statistics, pleaserefer to theAnnexure-2.
From all above, thedelay in the design approval should be treated fairly, instead of contributingall the responsibilities to the Contractor.
4. Delays inAcquisition of Type Test Report of Various Equipment
[if !supportLists]4.1 [endif]Acquisition of Type Test Delay Due to Covid-19Pandemic as FME
[if !supportLists]（a） [endif]The Employer is well aware that the
current applicable requirements for “type test” were introduced by NTDC in
January 2019. It was well known to the Parties that upon signing date of the
Equipment Supply Contract, there was no “equipment” available in the market
which had the “Type Test Report” as per the NTDC Requirements and the process
of obtaining the requisite type test was to be commenced after selection and/or
finalization of the “equipment” to be duly approved by the Employer/NTDC.
[if !supportLists]（b） [endif]As an experienced and reputable
Supplier, we had initiated the process of obtaining the type test reports more
than ten months ahead of the Commencement Date(15-July-2020) of the Project.
Moreover, the entire process of obtaining the “Type Test Report” typically
requires ten to twelve months under normal situation involving of the following
steps:
[if !supportLists]- [endif] Selection and or finalization of theEquipment
[if !supportLists]- [endif]Booking for the type test with aninternal independent agency
[if !supportLists]- [endif]Mobilization of Equipment at its lapfor testing
[if !supportLists]- [endif]Test duration and report writing
[if !supportLists]（c） [endif]It is well evident that the Covid-19 Pandemic has
seriously affected our ability to complete the type test as originally planned,
whereby, not only manufacturers/vendors but also the international testing
agencies were not responding well in time, even though we took the requisite
measures in terms of submission of technical documents and follow-up, and
provide all the necessary support and assistance from our side, certain “Type
Test Report” are delayed for the reasons beyond our control. We had already
notified the Employer the broad impact of Covid-19 Pandemic (declared/claimed
as FME) which fully entitles us for extension of time, which matter shall be
separately dealt with the Employer.
[if !supportLists]（d） [endif]Please note and appreciate that we are fully
mindful of our obligations for providing the Type Test Report and making all
possible efforts to expeditiously obtain the said reports, whereby nothing is
outstanding on our part.
[if !supportLists]（e） [endif]We had to rely on the input received from theinternational testing agencies. In response to our aggressive follow-ups, wehave received a self-explanatory letter (attached herewith asAnneuxre-3) from SiemensEnergy Global GmbH& Co.KG explaining the delay for the “Type Test Reports”.
[if !supportLists]（f） [endif]In a nutshell, we are of the
considered view that the Equipment supplied by us fully complied with the NTDC
Requirements, however, this matter of Type Test Report has not been entirely in
our control, and we have taken all the requisite measures for obtaining the
said Type Test Reports well in time and the delays currently experienced by the
Project are not attributable to us.
[if !supportLists]4.2 [endif]Additional Test Requirements by NTDC
As already notified to the Employervia letter asAnnexure-4,it is pertinent to mention that the demand of performance of “TransmittedOvervoltage Test” which is not a type test but a special test was over andabove the requirement of NTDC’s approval of TDS and Drawings of our offered132KV CCVT as well as IEC Standard.
There is no requirement of such test
is not part of the Employer’s Requirements or otherwise stated in the Contract,
EPA, NTDC specification P-206 or even in the “Revised Type Test Policy issued
by NTDC dated 03-Jan-2019”. In other words, such a test should be an additional test necessitating
additional work which falls within the purview of a Variation.
[if !supportLists]4.3 [endif]Employer’s Deliberately Hindrance of FAT forHardware
We have kept Employer’s team informedfrom time to time through phone calls and zoom online meetings about the FATactivities in Lorunser factory where Employer representative instructedSupplier’s representatives to conduct FAT of Lakeside even NTDC didn’tapprove/issue the Third-Party witness waiver. Since Supplier’s role is tofacilitate Employer in NTDC approvals, so following Employer representative’sinstruction we hereby informing the Employer that the Manufacturing and FAT forLorunser Hardware have been completed for all wind projects including FAT ofLakeside Project by Third-Party inspector. However, to Supplier’s surprise, theEmployer has recently shared approval letter of NTDC where NTDC approved thirdparty inspector, but they ask to witness the FAT online which has not been doneon any other project also was instructed by Lakeside Employer. The solo reasonof additional requirement of online is due to the Employer’s self-decision onthe letter content of request for the nomination of Third Party for FATsubmitted to NTDC resulted in the additional requirement from NTDC to carry outthe FAT.
Please refer to your letter and others’ letters to NTDCregarding the request for nomination of FAT’s Third-Party. The consequence ofthe above difference in the two Employers covering letters is that NTDCrequires an additional online FAT only for Lakeside Project. Please note thatsuch additional Online FAT requirement may result in apotential delay in the shipping of hardware andadditional cost. The Supplier reserves the right to claim the additional timeand cost, which shall be solely responsible by the Employer.
For remaining projects, we plan tosubmit it to the Employer/NTDC soon and the delivery of hardware will bearranged at the earliest. Nevertheless, for Lakeside Project, the hardware’sdelivery is still involved with the new and additional online FAT proceedings,FAT Report approval, European Omicron Variation situation and another shipmentarrangement. Therefore, the Supplier is looking forward for the strategy andinstructions from Employer to finalize the online FAT at the earliest by avariation order.
TheSupplier, however, took the requisite measures to obtain the type test reports,including additional tests as required by the NTDC, which correspondinglydelayed the process of approvals required from NTDC, the CCVT FAT, andsubsequently the shipment of the Equipment to Site.
Followingthe Employer’s instruction, we have submitted the revised Programme throughvarious occasions and explained lots of times the reasons for the delay asmentioned above. The Contractor has discharged all his contractual obligationseven without the Employer’s financial support.
TheContractor is entitled to an extension of time in accordance with the relevantcontract clauses under these circumstances and has submitted a Request forExtension of Time. The Employer’s fair and reasonable determination will becrucial for the smoothly progress of the Project. It’s better that the Employerand the Contractor work with joints efforts to make this extension of time achievedat the earliest.
Weearnestly request to withdraw your Demand of LDs, failing which we shall beconstrained to exercise all our legal rights to safeguard our interests and toprotect our position as per relevant provisions of the Contract and theapplicable law, including but not limited to, the suspension of the Project anddefending the Contractual and legal rights.
It’srequested that the Employer could approach CPPA/NDTC for extension of timeusing the fact of Force Majeure Event. The Contractor is ready for any supportof aforesaid claim.
Underthese circumstances, we once again earnestly request the Employer to withdrawwithout any further legal confrontation, as alternatively we shall beconstrained to initiate the process for settlement of the Dispute as per theContract.
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这里和现场确认一下，刚开始是不是有进场道路碎石基层(Aggregate course)厚度的问题和业主有争议，导致初始工作延误。
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