New Zealand Engineering 1998 October

Letters,
New Zealand Engineering
Freepost 3938
PO Box 12-241, Wellington or emailed to Peter@ipenz.org.nz

Letters should be wise, witty and brief. The editor reserves the right to seek replies, edit and not publish letters.

The procurement paradigm

After just reading August's New Zealand Engineering, I would like to add my "two cents worth" to Carole Durbin's article "Acceleration and the New 3910".

I am surprised that just as the new NZS 3910:1998 (General Conditions of Contract) is being implemented, there is already a suggestion that a clause should be deleted and replaced. Transit New Zealand remains committed to standardising our contract documents across the country, and using industry standard and accepted General Conditions of Contract is fundamental to this philosophy.

What Ms Durbin says is quite correct. However, I can not support amending the standard to give the Principal unilateral ability to order acceleration and I am not aware of any other standard form that does.
The draft of the new standard, released for comment in March last year, yielded in excess of 500 submissions, with only three of these proposing minor amendments to this particular clause.

The previous standard was silent on acceleration and in my opinion the new Clause 10.3.6, requiring agreement between the Principal and Contractor, is a better process than trying to deal with a ballooning dispute over valuing the associated variation, after the contract has been completed.

My end note is that contractual problems such as acceleration evaporate once all parties put some honest effort into moving beyond the lip service and warm fuzzies too often associated with partnering, and consciously work on the three critical success factors, viz. commitment, equity, and trust. I have to be honest and admit to previously sitting in the cynic's camp, thinking partnering was something better left between a husband and wife. However, I am now thoroughly converted following some pleasant surprises with its practical application, both on complex projects and on projects where the unexpected has invariably occurred.

I would recommend giving partnering a crack before trying to fix the new NZS 3910:1998.

Mark Cairns, Transit New Zealand, Napier

Acceleration and the new 3910

I refer to the article by Carole Durbin entitled "Acceleration and the new 3910" which appeard in the August edition of New Zealand Engineering.

I must take issue with the author of the article in that I believe she has failed to grasp the reasoning behind the clause and its inclusion in the new 3910. This is a stand alone clause and has been included to give the principal some flexibility in a project where a contractor has been delayed due to circumstances beyond its control.

With regard to Clause 10.3.6 consider the following:
. The contractor has been awarded an extension of time due to circumstances beyond its control which extends the contractual completion date of the contract.
. Due to the commercial nature of the project the principal wishes to mitigate its losses and bring the project in on the original completion date or as close as possible thereto.
. The completion date for the project must have been extended due to the non-performance of the engineer/principal - why else would an extension be granted?
. There is no question of a "generous payment" to the contractor as the principal has to make a commercial decision whether it is in its best interest to accelerate the works (at a cost) and thereby commence production (and obtain revenue) at an earlier date, or live with the extended completion date which will also have a cost attached to it as the contractor is entitled to on-site costs, overhead and profit for any extension of time granted. These costs, which can be substantial, can be offset by the principal against any agreed acceleration costs by the contractor.

I find it inconceivable that the author of the article should consider that a decision as to whether or not the contract can be accelerated as well as the cost of any such acceleration should be made without the agreement of the contractor. Who else but the contractor is in the best position to decide the additional resources required, the extra costs involved and if in fact it is possible to achieve an earlier completion date? The statement that "the balance of power is still unfairly tipped in the contractor's favour in this new clause" indicates to me that the author wants the principal/engineer to have their cake and eat it. Having delayed the contractor they now want to get themselves "off the hook" and to arbitrarily decide the extent of the acceleration they want and what is reasonable compensation for the contractor to accelerate and achieve such an earlier completion date. How the author can state that this is no more sensible than the situation where "the principal can only vary the works if the contractor agrees" is also not easily understood, as these are two entirely different circumstances.

Under Clause 9.1 of NZS 3910:1998, it states that the principal can vary the works and the Contractor shall comply and failing agreement on the value of the variation it shall be determined by the Engineer. This is acceptable. Under Clause 10.3.6 the contractor has been awarded an extension of time and the choice of using that extension (and being paid for it) or accelerating at the principal's cost should be that of the contractor and the contractor alone.

This leads me to another point made in the article concerning the right of the principal to order acceleration to a contract. In my opinion the principal has the power under Clause 9.1 of the General Conditions to order acceleration to a contract where no extension of time has been granted. To order such a variation would be most unusual, as one must assume that the contract had originally been awarded on the basis of the principal being comfortable with the original completion date - so why change it?

In conclusion, the fact the author states that "the balance of power is still unfairly tipped in the contractor's favour" the inclusion of the word "still" would indicate that the author has a problem with any of the rights conferred on a contractor through NZS 3910:1998.

WG Vance, New Zealand Institute of Highway Technology, New Plymouth

Genetic engineering

I read with interest (and confusion) the ongoing debate for and against genetic engineering in the September 1998 issue. I have a very simple view. Genetic engineering is certainly a difficult one to verify yay or nay on technical grounds but I am befuddled why we can't have labelling!

I thought the main point the "nays" were fighting for was to have labelling. As I understand it, the "yays" do not want labelling. Surely to this question there can be no debate. Every product is required to have labelling, so why not genetically engineered products. Only with labelling can the public truly have the final say.

Lets at least all be demanding labelling and let the technical debate
continue independently, as I am sure it will continue for many years to come.

David Kettle, Auckland

Genetically modified foods

In his continued advocacy of genetically modified foods (GMFs), Howard Bezar, himself an activist in a well orchestrated campaign capitalising on public naivete about science, persists in his contradictory and illogical statements (September issue).

He speaks of "giving the public... accurate information and allowing consumers to make informed choices" - but only on a case by case basis! So, in some cases he would not allow consumers an informed choice? Who makes this paternalistic decision? Seemingly the ANZFA. Perhaps it is all right to allow people to choose freely for or against a decaffeinated GMF coffee (GMF is unnatural, by the way), but not to risk them choosing against a product containing Roundup Ready soyabeans. How does ANZFA decide? Is it to do with the commercial clout of a big multinational like Monsanto, with its record of unethical behaviour and its restrictive trade contracts running counter to open competition and free market practice? What qualifies ANZFA to assume this Pope-like censorship role?

How can the public be "confident that safety standards provide protection" when the "only acceptable proof of the safety [or otherwise] of genetic engineering will be its record over the next ten years or so"? It's especially a concern when they know that the modification, if it turns out to be unsafe, probably cannot be reversed. Whatever happened to the principle of informed consent for experiments being conducted on us?

The facts are indeed technically difficult, especially if they have been laundered by the industry, but the issues are quite simple. Like: do we have a real choice or not?

Geoff Gregory, Wellington

Makara wind farm debate continues

In your July issue Geoff Henderson questioned whether I represented the view of the Makara residents in opposing ECNZ's plan for a wind power station in the area. Mr Henderson can be assured that as President of Makara Guardians Inc I am representing the views of the society's members who make up 80 percent of the adult population of the area.

Mr Henderson stated that "If the majority of locals are well-informed about the real impacts and still want to halt this environmentally beneficial project, then fair enough." I can reassure Mr Henderson that Makara is probably the most informed community in New Zealand on wind power and assume that he will now agree that the project should not proceed!

Mr Henderson rolls out the usual propaganda from overseas which implies that massive wind turbine structures on the top of scenic hills are visually pleasing to most people and do not cause noise problems. Whilst the visual impacts are obvious, and very hard to deny, noise is an area where the lay person can be intimidated by so-called "experts" employed by the wind power industry.

Wind turbine sound standard NZS 6808 is the output of a committee dominated by members from the wind and energy industry, including Mr Henderson who considers noise is a "non-issue". This when the 5th
Report by the Trade and Industry Committee in the UK (June 1998) acknowledges that "rotating wind turbines create a penetrating low frequency noise the volume of which the Energy Technology Support Unit has confirmed cannot be predicted when a wind farm is planned". Perhaps Mr Henderson and his colleagues can enlighten the UK T& I on their findings!

Perhaps some idea of the real impact of wind turbines can be gained from a report by the Norwegian Water Resources and Energy Administration (NVE) who, following much interest in wind energy in Norway, sent a delegation to study the subject in Denmark where thousands of wind turbines have been installed over a period of 15 years.

The report, outlined in the NVE house magazine Vann & Energi (Water and Energy) of April this year, states that the Danish initiative has suffered from "inadequate controls" and led to "serious environmental effects, insufficient production and high production costs". According to NVE the main success of the Danish investment in wind power would appear to be "the foundation of an industry producing wind mills".

Makara Guardians supports the concept of wind energy but well understands that it may come at a cost to the environment which in many cases may outweigh the benefits. It is unfortunate that many of those in
the wind energy industry continue to play down the environmental impact of these massive turbine structures.

Gordon Mason Makara Guardians Incorporated