Delay in Achievement of Milestone 1: Civil and Track Works - Dabla-Rewari

The arbitration concerns the delay in achieving Milestone 1 for the Design and Construction contract of Civil, Building, and Track works for the Rewari-Iqbalgarh section of WDFC Phase I. The claimant was awarded the contract by the respondent, with completion originally set for 24 August 2017. The dispute centers on the delayed completion of specific works within the Dabla-Rewari section, affecting the project timeline and resulting in claims for various expenses and losses.

• Delay
• Milestone
• Construction
• Arbitration
• Claim

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1. 1.The contract Scope and Nature of works The Claimant (or Contractor ) was awarded the contract dated 06 August 2013 ( Contract ) by the Respondent for, inter-alia, Design and Construction of Civil, Building and Track works on design build lump sum price basis for Rewari-Iqbalgarh section of WDFC Phase I (Package CTP-1&2). The Commencement Date of the Contract was 30 August 2013 and the Contract works were to be completed by 24 August 2017. The Contract stipulated completion of contract works by achieving five milestones, namely MS-1 to MS-5 as described in Coordination Events and Key Milestones (ATB 8.2) of the Contract [HB-Vol.5, p.155]1. The present arbitration relates to the delay in achievement of MS-1: Completion of Civil and Track skeleton Works Dabla-Rewari . As per ATB 8.2, the MS-1 was to be achieved within 120 weeks (or 840 days) from commencement i.e., by 17 December 2015. The length of Dabla-Rewari section is 80.286 Km. This section constitutes Dabla-Ateli (40.858 Km), Ateli-Rewari (29.245 Km), and Hissar Line (10.183 km). The various broad items of work that are required to be completed in Dabla-Rewari section for achieving MS-1 are given in the table below 1.Design and Planning 2.Formation Earth work 3.Major / Important Bridges [including Rail Flyovers (RFO)] 4.Minor Structures [including Road Under Bridges (RUB) and Minor Bridges (MIB) and Pedestrian Subways (PS)] 5.Track installation

2. As per the 'Invitation for bids' floated by the Respondent, the eligibility criteria to bid is as follows- 4.1 A Bidder may be a single entity or any combination of entities in the form of a joint venture, Association or Consortium (JVA) under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. In the case of a joint venture or association: (a) unless otherwise specified in the BDS, all partners shall be jointly and severally liable for the execution of the Contract in accordance with the Contract terms. and (b) the JVA shall nominate a Representative who shall have the authority to conduct all business for and on behalf of any and all the partners of the JVA during the bidding process and, in the event the JVA is awarded the Contract, during contract execution.

3. TOPOGRAPHICAL SNAPSHOT OF THE BHAGEGA - REWARI REGION Bhagega- Rewari - 113.6 KM Dabla- Rewari- 81.9 KM

4. The Summary of claims granted is as follows - Claim No. Brief description of the claim Amount claimed in Sum awarded INR statement of claims INR I Onsite overhead expenses 34,54,20,432 33,11,23,865 2 Offsite overhead expenses 21,93,19,376 20,17,78,176 3 (a) Owned Plant & Equipment 61,23,07,684 30,07,50,587 3 (b) Hired Plant & Equipment 19,88,46,033 5,79,23,523 3 (c) PRW's Plant & Equipment 31,45,01,500 NIL Total 3(a),(b) & (c) 112,56,55,218 35,86,74,110 4 Cost on labourers 15,13,86,890 NIL 5 Additional cost on fuel 1,99,32,686 1,16,15,000 6 Interest on additional funds arranged to 9,29,54,400 NIL make extended stay costs 7 Loss of earning capacity & profit 57,50,35,063 25,43,73,040 8 Claim for interest 35,91,11,800 At flat rate of 8% pa on 31-05-2017 till the date of pronouncement of the Award on INR 115, 75,64,191/- Total 290,82,15,865 115,75,64,191 (excluding award for Claim No.8)

5. 8.2 Time for Completion Delete this Sub-Clause and substitute by the following: As stated in ATE, The Permanent Works of entire geographical jurisdiction shall be completed in five stages as under- 1: Completion of Civil and Track Skelton works Dabla- Rewari: 100 weeks (700 days) (MS-1) 2: Completion of Testing of Prototype Loco Dabla- Rewari: 114 weeks (798 days) (MS-2) 3: Completion of Track Skelton for entire Package: 180 weeks (1260 days) for temporary use by the Employer or by other Employer's tower wagons, rail cum road vehicle etc. [Milestone 3] 4: Integrated Testing & Commissioning: 196 weeks (1372 days) [Milestone 4] 5: Completion of all works & handing over: 208 weeks (1456 days) [Milestone 5]

6. All the items of work as listed above can be executed simultaneously or in parallel throughout the stretch of Dabla-Rewari, except track installation, which would require all the other items to be completed in a significant length of section, before skeleton linking of track can be taken up. The Claimant, at its own volition, had planned to carry out track installation works starting from its base track depot at Bhagega, about 35 Km south-west of Dabla. Since the tracks were to be installed sequentially with the help of New Track Construction (NTC) machine, the track installation works from Dabla to Rewari (MS-1) could be done only after the track works were completed by the Claimant starting from Bhagega to Dabla. However, the start and completion of civilworks (i.e. construction of embankment, bridges etc.) within Dabla-Rewari was independent of the progress in civil or track works in Bhagega-Dabla section. Delay in achievement of MS-1 For the reasons described later, MS-1 could not be achieved on the scheduled date. The Contractor had submitted two applications to the Engineer for grant of extension of time [ EOT ] for achievement of MS-1. A summary of the EOT applications and the EOT assessed by the Engineer is as follows; EOT (days) Date of Application Delay Events till Date of Engineer s assessment Extended date of MS1 Acceptance of EOT assessment By By Claimant 30.07.2015 Respondent 17.09.2015 17.03.2015 31.01.2015 15.05.2015 168 03.06.2016 08.02.2016 31.08.2015 12.05.2016 125 06.10.2016 21.05.2016 15.03.2017

7. Key dates of construction are as given below- Table 5.9 Construction summary - CTP I (Milestone I to Bhagega to Rewari) Sr. No. Activity Start Month Finish Month Duration in Months 6 17 15 1 2 3 Utility Diversion Earthwork Bridges excluding FOB's and ROB's 4 4 6 9 20 20 4 Bridges including FOB.'s And ROB's 8 26 19 5 6 7 Buildings Track Work Post Track Surfacing 7 17 17 22 24 27 16 8 II

8. S. No. Date Exhibit Event/Details I. 2. 3. 17-03-2015 15-05-2015 30-07-2015 C-10 C-13 C-14 Claimant's first claim for EOT for 268 days till 31-08-2016 in MSl Engineer's determination of EOT for 168 days till 03-06-2016 in MSl Claimant's acceptance of the Engineer's Determination dated 15-05-2015 4. 17-09-2015 R-15 Respondent's acceptance of the Engineer's Determination dated 15-05- 2015 Claimant second claim for EOT for 408 days till 31 August 2015 in MS1 Engineer's determination of Claimant's claim for EOT for 293 days till 6 October 2016 in 5. 6. 8-02-2016 12-05-2016 C-11 C-19 MS1 and held that Claimant can be allowed to submit its claims for costs arising therefrom Claimant's uncondition al acceptance of the Engineer' s Determination dated 12 May 7. 21-05-2016 C-20 2016 Engineer wrote a letter directing the Claimant to submit detailed claim, if any, of 8. 5-01-2017 C-23 additional payments 111 respect of delays up to 31 August 2015 for the Engineer's Determination. 9. 17-01-2017 C-24 Claimant submitted its claims in respect of Cost incurred and compensation for losses sustained by it up to 31 March 2016

9. S. No. Date Exhibit Event/Details 10. 16-02-2017 C-26 Engineer denied the claims for Cost and compensation for losses sustained by the Claimant due to execution of work of MS 1 in the extended period up to 31 March 2016 11. 7-03-2017 C-25 Claimant updated the cost statement dated 17 January 2017 to include Cost incurred and compensation for losses sustained by Claimant up to 30 September 2016 12. 15-03-2017 R-16 Respondent's unconditional acceptance of the Engineer's Determination dated 12 May 2016 Engineer gave notice of agreement by both the parties of EOT for completion of MSl by 13. 20-03-2017 C-22 293 days from 17 December 2015 due to Delay Events accrued up to 31 August 2015 14. 24-03-2017 C-27 Engineer denied the Cost and compensation entitlement dated 7 March 2017 in respect of the Claimant's EOT Cost Claim 2

10. 96. Reliefs sought by the Claimant 96.1. The Claimant set out the following reliefs in its Request for arbitration, which were also recapitulated in paragraph 66 of the Terms of Reference: (i) Additional costs/ damages in the sum of Rs 254,91,66,065/- incurred on account of prolongation of execution of work of MS1 in the extended periods up to 30 September 2016 (considering the delay events accrued up to 31 August 2015) in favour of the Claimant and against the Employer. (ii) Declaration that Claimant is entitled to receive further sums/additional costs/damages to be computed in the same manner as followed in letters dated 17 January 2017 and 7 March 2017 on account of prolongation of execution of the work of MS1 for further extended periods (i.e., beyond 30 September 2016) and till all delay events are concluded. (iii) Interest on the above amount of Rs 254,91,66 ,065/- @12% per annum compounded monthly for the period to be reckoned from the date on which such amounts became due and payable up to the date of the award; (iv) Post Award interest accruing @ 18%until Respondent' s full and final satisfaction of the Award;

11. (v) All costs and expenses of arbitration, including but not limited to the fees and disbursements of the ICC , this Tribunal and the Claim ant ' s legal and associated fees, costs and expenses incurred in connection with and preparation for the conduct of proceed in gs, fees and expenses of arbitrators and legal counsel, experts and witness together with interest on such costs as the Tribunal considers appropriate; (vi) Any other orders / directions in favour of the Claimant which may deem fit and proper in the facts and circumstances of the present case. 96.2 The reliefs sought by the Claimant, as quoted herein below, are set out in paragraph 208 of the SOC where the Claimant estimated that the amount of its claim was in the region of Rs. 254,91,04,065 /-. The Claimant seeks orders by way of a Final Award in favour of the Claimant, in the following terms: (I) (a) Pass an award in favour of Claimant and against the Respondent for Costs and compensation in the sum of Rs 197,40,69,002/- incurred on account of execution of work of MS 1 (considering the Delay Events accrued up to 31 August 2015 in favour of the Claimant and against the Employer. (I) (b) Pass an award in favour of Claimant and against the Respondent for compensation for losses/damages in the sum of Rs 57,50,35,063 /- incurred on account of execution of work of MS l in the extended period from 6 August 2015 to 30 September 2016 (considering the Delay Events accrued up to 31 August 2015 in favour of the Claimant and against the Employer.

12. (I) I Pass an award in favour of Claimant for interest on the claim amount of Rs 254,91,04 ,065/- computed at the rate of 12% per annum compounded monthly for the period to be reckoned from the date on which such amounts became due and payable up to the date of the award: (II) Post Award interest accruing @l 8% per annum until Respondent ' s full and final satisfaction of the Award; (III) Pass an award in favour of Claimant and against the Respondent that for all the delays beyond 30 September 2016 the Respondent is obligated to compensate the Claimant for all the costs incurred based on the same principles as awarded in relief (I)(a) above and also compensate the Claimant for the losses/damages incurred as awarded in the relief (I)(b) above together with interest as per (I)(c) above; (IV) All costs and expenses of arbitration, including but not limited to the fees and disbursements of the ICC, this Tribunal and the Claimant's legal and associated fees, costs and expenses incurred in connection with and preparation for the conduct of proceedings, fees and expenses of arbitrators and legal counsel, experts and witness together with interest on such costs as the Tribunal considers appropriate; (V) Any other orders / directions in favour of the Claimant which may deem fit and proper in the facts and circumstances of the present case. 96.3 While at the time of raising the Request for arbit ration, the Claimant had clubbed its claim for costs and damages as Rs 254,91,66,065/-, the Claimant segregated the costs and damages as Rs 197,40,69,002/- and Rs 57,50,35 ,063 /- respectively in the SOC. In the SOC, the Claimant also added the relief (III), which was not sought at the time of raising the Request for arbitration.

13. The Claimant has also made a flow-chart to show its entitlement to the Claims made:

14. As per priority of documents laid down in Clause 1.5 of the GC 54 the provisions of the Particular Conditions take priority over "Contractor 's Proposal". The Clause states as follows - 1.5 Priority Documents The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence: (a) the Contract Agreement (if any), (b) the Letter of Acceptance, (c) the Letter of Tender, (d) the Particular Conditions, (e) these General Conditions, (j) the Employer's Requirements, (g) the Schedules. and (h) the Contractor 's Proposal and any other documents forming part of the Contract If any ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction.

15. Clause 8.4 of GCC/PC "Extension of Time for Completion "The Claimant shall be entitled subject to Sub-Clause 20. I [Claimant's Claims} to an extension of the Time for Completion if and to the extent that completion for the purposes of Sub-Clause I 0. I [Taking Over of the Works and Sections} is or will be delayed by any of the following causes: (a) Variation (unless an adjustment to the Time for Completion has been agreed under Sub-Clause I 3.3 Variation Procedure}), (b) a cause of delay giving an entitlement to extension of time under a Sub-Clause of these Conditions, (c) Deleted (d) Unforeseeable shortages in the availability of Goods caused due to changes in Laws in accordance with the provisions of Sub-Clause 13. 7 (e) any delay, impediment or prevention caused by or attributable to the Employer, the Employer ' s Personnel, or the Employer's other Claimants on the Site. (f) A cause of delay in handing over possession of Site in accordance with the provisions of Sub-clause 2.1 ".

16. 1. These reasons drove the Claimant to seek Extension of Time ("EOT") for Completion of MS I as per inter alia Clause 8.4 and Clause 8.5 of GCC read with PC, which are as follows- Clause 8.5 of GCC "Delays caused by Authorities "If the following conditions apply, namely: (a) the Claimant has diligently followed the procedures laid down by the relevant legally constituted public authorities in the Country, (b) these authorities delay or disrupt the Claimant 's work, and (c) the delay or disruption was Unforeseeable, then this delay or disruption will be considered as a cause of delay under sub-paragraph(b) of Sub-Clause 8.4 [Extension of Time for Completion}.

17. 20.1 Contractor's Claims If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance. If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged ji-om all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply. The Contractor shall also submit any other notices which are required by the Contract, and supporting particulars for the claim, all as relevant to such event or circumstance. The Contractor shall keep such contemporary records as may be necessary to substantiate any claim, either on the Site or at another location acceptable to the Engineer. Without admitting the Employer's liability , the Engineer may, after receiving any notice under this Sub Clause, monitor the record-keeping and/or instruct the Contractor to keep further contemporary records. The Contractor shall permit the Engineer to inspect all these records, and shall (if instructed) submit copies to the Engineer.

18. 20.1 Contractor's Claims Within 42 days after the Contractor became aware (or should have become aware) of the event or circumstance giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shall send to the Engineer a fidly detailed claim which includes fitll supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed. If the event or circumstance giving rise to the claim has a continuing effect: (a) this fully detailed claim shall be considered as interim; (b) the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and (c) the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as ,nay be proposed by the Contractor and approved by the Engineer.

19. 20.1 Contractor's Claims Within 42 days after receiving a claim or any further particulars supporting a previous claim , or within such other period as may be proposed by the Engineer and approved by the Contractor, the Engineer shall respond with approval, or with disapproval and detailed comments. He may also request any necessary further particulars, but shall nevertheless give his response on the principles of the claim within such time. Each Payment Certificate shall include such amounts for any claim as have been reasonably substantiated as due under the relevant provision of the Contract. Unless and until the particulars supplied are sufficient to substantiate the whole of the claim, the Contractor shall only be entitled to payment for such part of the claim as he has been able to substantiate. The Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) the extension (if any) of the Time for Completion (before or after its expiry) in accordance with Sub-Clause 8.4 [Extension of Time for Completion) , and/or (ii) the additional payment (if any) to which the Contractor is entitled under the Contract. The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim. If the Contractor fails to comply with this or another Sub Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause.

20. Clause 20.6 of the General Conditions of Contract ("GCC") is as follows: Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by international arbitration . Unless otherwise agreed by both Parties: (a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, (b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language]. (c) The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, relevant to the dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute. Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision , or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration. Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works .

21. 6.2 Programme Requirements The Contractor's Works Programme and all other programme in the Contract as applicable shall comply with the following requirements unless otherwise instructed by the Engineer: (3) the Contractor is responsible for determining the sequence of activities, the time estimates for the detailed design and construction activities and the means, methods, techniques and procedures to be enjoyed. Time schedules identified herein shall represent the Contractor's best judgment of how it will execute the Work in compliance with the Contract requirements. The Contractor shall ensure that the time schedule is current and accurate and is properly and timely monitored, updated and revised to accommodate with current project conditions and in compliance with the requirements in the Contract

22. 8.3 Programme The Contractor shall submit a detailed time programme to the Engineer within 28 days after receiving the notice under Sub-Clause 8. I Commencement of Works]. The Contractor shall also submit a revised programme whenever the previous programme is inconsistent with actual progress or with the Contractor's obligations. Each programme shall include: the order in which the Contractor intends to carry out the Works, including the anticipated timing of each stage of design, ContractorsDocuments, procurement, manufacture, inspection, delivery of Site, construction, erection, testing, commissioning and operation' the periods of reviews under Sub - Clause 5.2 [Contractor's Documents ] and for any other submissions, approvals and consents specified in the Employer's Requirements. the sequence and timing of inspections and tests specified in the Contract, and a supporting report which includes: a general description of the methods which the Contractor intends of adopt, and of the major stages, in the execution of the Works, and (ii) details showing the Contractor's reasonable estimate of the number of each class of Contractor 's Personnel and of each type of Contractor's Equipment, required on the Site for each major stage. Unless the Engineer, within 2 I days after receiving a programme, gives notice to the Contractor stating the extent to which it does not comply with the Contract, the Contractor shall proceed in accordance with the programme, subject to his other obligations under the Contract. The Employer's Personnel shall be entitled to rely upon the programme when planning their activities. The Contractor shall promptly give notice to the Engineer of specific probate future events or circumstances which may adversely affect the work, increases the Contract Price or delay the execution of the Works. The Engineer may require the Contractor to submit an estimate of the anticipated effect to the future event or circumstances, and/or proposal under Sub-Clause I 3.3 [Variation Procedure] If, at any time, the Engineer gives notice to the Contractor that a programme fails (to the extent stated) to comply with the Contract orto be consistent with actual progress and the Contractor's stated intentions, the Contractor shall submit a revised programme to the Engineer in accordance with this Sub Clause ..

23. 6.3 Co-ordination with Indian Railways Span arrangement, type of structure and their Technical Design proposed by the Contractor in respect of all the Major/Important Bridges of DFC in parallel/vicinity of the existing structures of Indian Railways shall also require approval from Indian Railways through the Employer in addition to the consent by the Engineer The Contractor shall be required to submit one additional copy of all his GADs/span arrangement and Technical Design of all such structures to the Engineer for onward submission to Indian Railways . The Employer shall co-ordinate seeking the approval from Indian Railways, however, the Contractor shall facilitate the Engineer/Employer in seeking the approval from Indian Railways but not limited to providing clarifications/additional data, attending meetings etc. as required

24. Section 73 of the Indian Contract Act, 1872, which are reproduced here in below- 73. Compensation for loss or damage caused by breach of contract.- When a contract has been broken , the party who suffers by such breach is entitled to receive, .from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach , or which the parties knew , when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.-When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation.- In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.

25. Engineer's EOT Determination dated 15 May 201572 granting 168 days- S.No. Delay event relied upon by the Contractor Analysis by the Engineer/Extract from the EOT Determination l. Engineer's consent/ NONO to Contractor' s design 4.4. On analysing the EOT assessment due to delayed approval with reference drawings and submittals (Contractor's design to the critical path analysis, it is noted that the delay due to the Engineer's documents) approval is much less than the period on other concurrent (dominant) delay's events on the critical path and as such is absorbed by those events. As such the said assessed delay due to delayed approval is not on the critical path ..... 2. Change in the law (in the State of The Engineer concludes that the Contractor is entitled EOT since on the Base Rajasthan) Requiring prior environmental clearance Date i.e. , 22 October 2013, the requirement of EC was not there. Thereafter for the State to issue lease permission for mining there was suspension of EC process due to the NGT stay between 8 January of minor minerals having an area less than 5 ha 2013 to 13 January 2015 which was beyond Contractor's control. The NGT and subsequent suspended EC process by NGT order amounted to a change in law and affected the Bhagega Dabla section order. which in tum affected the Rewari- Dabla section 3. Delay caused to commencement of the work of The requirement of IR approval for MIBs & RUBs is a new requirement with RUB due to not finalizing RUB design by IR. reference to ER. Accordingly, this new requirement is considered as a variation to the Contract. The location and span arrangement indicated in ER has also been changed and revised after discussions with IR. Contractor is entitled to EOT on this count

26. Engineer's EOT Determination dated 15 May 201572 granting 168 days- S.No. Delay event relied upon by the Contractor Analysis by the Engineer/Extract from the EOT Determination 4. Delay due to handing over of The Contractor has failed to substantiate details how individual isolated encumbered possession of land within right of way obstructions prevented him proceeding with work and affect the delay for full section ... .. as seen from critical path analysis, the delay due to encumbered site conditions (if any) should be absorbed by other concurrent (dominant) delay during the extended period .... 5 Delay in shifting of chartered/uncharted utilities Contractor failed to explain the reasons for the delayed submission (by 3-4 months) utilities of the variation proposal. The Contractor has also failed to substantiate details as to how those utilities b) have affected the delay for full section of work and failed to demonstrate the claimed events with comparison between CCP and as-built based on factual records and the linkage between sections within critical path which have caused delay for completion of work. Accordingly the Contractor's said claim of delay due to shifting of utilities c) has not been considered for EOT ... ....

27. Engineer's EOT Determination dated 12 May 201673 giving 125 days S.No. Delay event relied upon by the Contractor Analysis by the Engineer/Extract from the EOT Determination l. Engineer's consent/ NONO to Contractor' s design 3.4.4.6 On analyzing the EOT assessment due to delayed approval with drawings and submittals (Contractor's design reference to the critical path analysis, it is noted that the delay due to the documents) Engineer's approval is much less than the period on other concurrent (dominant) delay 's events on the critical path and as such is absorbed by those events ... 2. Change in the law (in the State of 3.5.5.... this delay event was not continuing beyond 31.01.2015. Accordingly NO Rajasthan) Requiring prior environmental clearance extension of time is applicable for the MS-1 due to the same in the period from for the State to issue lease permission for mining 01.02.2015 to 31.08.2015. of minor minerals having an area less than 5 ha and subsequent suspended EC process by NGT order. 3. Delay caused to commencement of the work of 3.6.3.... a) The delay in approval of Integrated GAD (new requirement) as well RUB due to not finalizing RUB design by IR. as delay in commencement of construction of some of RUB was prevalent in the period from 01.02.2015 to 31.08 .2015. b) The location/span arrangement of some of the RUBs has been modified as per the requirements of IR....

28. Engineer's EOT Determination dated 12 May 201673 giving 125 days S.No. Delay event relied upon by the Contractor Analysis by the Engineer/Extract from the EOT Determination 4. Delay due to handing over of 3. 7. encumbered possession of land within right of way Delay due to encumbered site conditions (if any) should be absorbed by other concurrent (dominant) delay during the extended period as the result of this analysis .... 5 Delay in shifting of chartered/uncharted utilities 3.8.5... No EOT is applicable due to the claimed delay in shifting of Chartered and Unchartered utility ..

29. These Delay Events entitled the Claimant to E0T for completion of MS1 inter alia as per Clause 8.4 and Clause 8.5 of GCC read with PC. Claimant' s claims for EOT (interim) and for Determination by the Engineer are set out hereinbelow: Delay Claimant's claim for Engineer's Assessment Engineer's Determination/ occurred upto EOT Days Notice of Agreement Revised date Days Revised date (Clause 3.5) 31 January 258 31 August 168 03 June 2016 (vide 21 September 2015 2015 2016 Engineer's letter dated 15 May 2015) 31 August 408 28 January 293 06 October 2016 (vide 20 March 2017 2015 2017 Engineer's letter dated 12 May 2016)

30. The Claimant has contended that the IR's approval to the Claimant's GAD, as recommended by the Engineer following its review/ assessment and reassessment etc., was delayed substantially for no fault of Claimant and has presented the following tables76 in support thereof- Bhagega- Dabla Section Bridge No. Engineer recommending Approval of IR to No. of Days after Period of completion Minimum time GAD approval to GAD (Reference) which Employer as per CCP [calendar required for the Employer seeking forwarded approval days] completion of MJB approval of IR of GAD by IR (Reference) MJB- 26 29 August 14 01 May 15 246 260 16 January 2016 (HB7/Page 308) (l-187/Page 190) MJB- 28 29 August 14 01 May 15 246 260 16 January 2016 (I-187/Page 191) (I-187/Page 309) MJB- 35 IO October 14 01 May 15 214 260 16 January 2016 (I-187/Page 192) (HB7/Page 310) MJB- 56 18 November 14 01 May 15 188 260 23 January 2016 (HB7/Page 193) (HB7/Page 311)

31. The Claimant has contended that the IR's approval to the Claimant's GAD, as recommended by the Engineer following its review/ assessment and reassessment etc., was delayed substantially for no fault of Claimant and has presented the following tables76 in support thereof- Ateli Rewari Section Bridge No. Engineer recommending GAD Approval of IR to Period of completion as Minimum time required approval to Employer seeking GAD (Reference) per CCP [calendar days] for the completion of MJB approval of IR (Reference) MJB-2 12 February 14 8 May 15 389 31 May 2016 (HB7/Page 313) (HB7/Page 313) MJB-13 11 March 14 19 August 15 389 11 September 2016 (HB7/Page 3 14) (HB7/Page 314)

32. THE TRIBUNAL PREPARED A TABULAR CHART TO DEMONSTRATE THE EXTENT OF MITIGATION OF DELAYS SECTION-WISE AS UNDER CONSIDERING THE STATUS OF HINDRANCES AS ON 31 AUGUST 2015. Period of completion CCP Revised date of start Section Entitled date of Completion considering CCP Actual period of EOT granted by Engineer up to Mitigation of delay considered by the Engineer in days Bhagega Dabla 260 01.09.15 18.05.16 12.01.16 127 Dabla Ateli 332 01.09.15 29.07.16 13.04.16 107 Ateli Rewari 389 01.09.15 24.09.16 22.06.16 94