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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award on Quantum

1.
The Award on Quantum ("Award on Quantum") relative to the process ("Process") filed by CONPROCA, S.A. DE C.V. (Mexico) (hereinafter referred to as the "Plaintiff" or "CONPROCA") against PETRÓLEOS MEXICANOS (Mexico) and PEMEX REFINACIÓN (Mexico) (hereinafter referred to as the "Defendant" or "PEMEX") is rendered herein below.

1. DEFINITIONS

2.
In addition to the definitions expressly set forth herein, those defined below will be used in this award.
3.
Final Award on Liability is the hearing held in Mexico City between January 15 and 20, 2007.
4.
Initial Hearing on Quantum is the hearing held in Mexico City between August 16 and 26, 2010.
5.
Final Hearing on Quantum is the hearing held in Mexico City on November 8 and 9, 2010.
6.
B&O is BAKER AND O'BRIEN, one of CONPROCA's experts.
7.
CONPROCA or Plaintiff is CONPROCA S.A. de C.V.
8.
Critical Event Adjustment Agreement is the Agreement entered into under such denomination between PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on December 12, 2000.
9.
Culmination Agreement is the Agreement entered into between PETRÓLEOS MEXICANOS and PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on April 20, 2001.
10.
Facilitation Agreement is the Agreement to Enable the Ruling on the Controversies Relative to the Cadereyta Project within the Arbitration Framework followed before the International Court of Arbitration.
11.
Direct Expense Payment Agreement is the Agreement entered into under such denomination between PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on January 8, 2001.
12.
Debt Acknowledgment Agreement or First Provisional Payment Agreement is the Agreement entered into between PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on July 7, 2000.
13.
Complementary Works Agreements is the Agreement entered into between PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on November 15, 2000.
14.
COPF or the Contract is the Financed Public Works Contract entered into between CONPROCA S.A. de C.V., on the one hand, and PETRÓLEOS MEXICANOS and PEMEX REFINACIÓN, on the other hand, on November 26, 1997.
15.
COPPU is the Unit Price Public Works Contracts entered into between PEMEX REFINACIÓN and CONPROCA S.A. de C.V. on November 26, 1997.
16.
DICTUC is DICTUC S.A., the expert appointed by the Tribunal for the stage of liability.
17.
FTI-Alliance is FTI Consulting, Inc. ("FTI") and Alliance Construction Consultants, Inc., the experts appointed by CONPROCA. Said experts continued with the work performed by NCI-Alliance, starting from the report dated August 2, 2010, clarifying in the latter that "the continuity of the expert's opinion may be assumed."
18.
Expert Report or Expert Report of the Tribunal Experts is the Expert Report dated October 18, 2010 presented by the Tribunal Experts.
19.
ITB means the Terms of the Bid of the International Public Bid carried out by PEMEX REFINACIÓN to select the contractor with whom the COPF would be entered into.
20.
Wrap-Up Meetings mean the meetings held between officials of PEMEX REFINACIÓN and CONPROCA S.A. de C.V. in August, 2002.
21.
LAOP means the Mexican Ley de Adquisiciones y Obras Públicas (Law on Procurement and Public Works) in force at the time the project which is the subject of this Award was carried out.
22.
Award on Liability means the award rendered in this process on December 17, 2008.
23.
NCI-Alliance means Navigant Consulting Inc. (NCI) and Alliance Construction Consultants, Inc., one of the experts appointed by CONPROCA.
24.
NWG/MRC means Nielsen-Wurster/MRC (Marsh Risk Consulting), one of the experts appointed by CONPROCA.
25.
Pathfinder means Pathfinder LLC, the expert appointed by PEMEX for the quantum phase.
26.
Tribunal Experts or PURVIN-SAGE means PURVIN & GERTZ, INC. and SAGE CONSULTING GROUP, INC., the experts appointed by the Tribunal for the quantum phase.
27.
PWM or Pearson Watson means Pearson Watson Millican & Co., one of CONPROCA's experts for the quantum phase.
28.
PEMEX or Defendant means PETRÓLEOS MEXICANOS and PEMEX REFINACIÓN.
29.
First Hearing on Liability or First Hearing means the hearing held between January 30 and February 6, 2006.
30.
Rules mean the 1998 ICC Arbitration Rules, which apply to this process.
31.
SGS or Independent Expert means the Société Générale de Surveillance de México S.A. de C.V.
32.
SK or SKEC means Sunkyong Engineering & Construction LTD.
33.
Finally, unless otherwise specified the amounts of money mentioned herein are expressed in dollars of the United States of America.

2. THE PROCESS

2.1 PARTIES

34.
The parties to this process are:.

2.1.1 Plaintiff or CONPROCA

35.
CONPROCA, S.A. DE C.V. (hereinafter referred to as CONPROCA), a joint venture incorporated under the laws of the United Mexican States, with an address in Mexico, Federal District.
36.
The address of such company, according to its communication dated April 11, 2011, is as follows:

Paseo de la Reforma No. 404, Piso 3
Colonia Juárez, Delegación Cuauhtémoc
México, D.F. 06600

2.1.2 Defendant or PEMEX

37.
It is composed of:

1. PETRÓLEOS MEXICANOS, a decentralized federal agency of the United Mexican States.

2. PEMEX REFINACIÓN, a decentralized federal agency of the United Mexican States.

38.
The address established by such public entities is the following:

Av. Marina Nacional 329
Edificio B-2, Piso 9
Col. Huasteca
C.P.11311
México, Distrito Federal
México

2.2 Attorneys-in-fact

39.
Messrs. Aloke Ray, Rafael E. Llano Oddone, Fernando del Castillo, Cecilia Flores Rueda, and Robert Levy initially took part in the quantum phase as CONPROCA's attorneys-in-fact. Then, Messrs. Nandakumar Ponniya, Paul W. Searles, Benjamin A. Escobar Jr., and Vicente Morayta also took part therein with such capacity.
40.
According to communication dated August 5, 2010, the following addresses are those of CONPROCA's attorneys-in-fact:

Aloke Ray
Nandakumar Ponniya
White & Case LLP
50 Raffles Place #30-00
Singapore Land Tower
Singapore 048623
Tel.: (65) 6225-6000
Fax: (65) 6225-6009
aray@whitecase.com
nponniya@whitecase.com

Rafael E. Llano Oddone
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
USA
Tel.: (1-212) 819-8200
Fax: (1-212) 354-8113 rllano@whitecase.com

Fernando del Castillo
Cecilia Flores Rueda
Santamarina & Steta
Campos Elíseos 345
Col. Chapultepec Polanco 11560, México, D.F.
México
Tel.: (52-55) 5279-5400
Fax: (52-55) 5280-6226
fcastillo@s-s.com.mx
cflores@s-s.com.mx

Paul W. Searles
Haynes & Boone, LLP
2033 Gateway Place, Suite 400
San José, CA 95110
USA
Tel.: (1-408) 660-4197
Fax: (1-408) 660-4297
paul.searles@haynesboone.com

Benjamin A. Escobar, Jr.
Beime Maynard & Parsons LLP
1300 Post Oak Blvd. Ste 2200
Houston, TX 77056
USA
Tel.: (1-713) 871-6701
Fax: (1-713) 960-1527
bescobar@bmpllp.com

Vicente Morayta
Caraza & Morayta
Monte Líbano No. 325, 2do. Piso
Colonia Lomas de Chapultepec
11000, México, D.F.
México
Tel.: (52-55) 5540-6147/6165
Fax: (52-55) 5540-6650
vmorayta@cym.com.mx

41.
Mrs. Laura Josefina Chong Gutiérrez and Messrs. Luis Enrique Graham Tapia, Salvador Fonseca González, Sergio Rodríguez Labastida, Perseo Quiroz Rendón, and Antonio Iván Rojas Navarrete took part in the quantum stage as PETRÓLEOS MEXICANOS and PEMEX's attorneys-in-fact. Then, Messrs. Ángel Morales Chainé, Juan Carlos Zamora Müller, Oliver J. Armas, José Carrillo Pérez, as well as Mrs. Angélica Huacuja García and Mariana Romero Casillas, were also included as attorneys-in-fact.
42.
In communications dated December 12 and 15, 2011, the defendant's attorney-in-fact provided the names and addresses of the people authorized to act on behalf of PEMEX REFINACIÓN and PETRÓLEOS MEXICANOS. To that end, the following names and addresses were designated:

Laura Josefina Chong Gutiérrez (laura.josefina.chong@pemex.com)
Ángel Morales Chainé (angel.moralesc@pemex.com)
Av. Marina Nacional número 329
Edificio A, Piso 8
Colonia Huasteca
Código Postal 11311, México, Distrito Federal

Luis Enrique Graham Tapia (lgraham@chadbourne.com)
Oliver J. Armas (oarmas@chadbourne.com)
Angélica Huacuja García (ahuacuja@chadbourne.com)
José Carrillo Pérez (j carrillo@chadbourne.com)
Mariana Romero Casillas (mromero@chadbourne.com)

Edificio Arcos Bosques Corporativo, Arcos I,
Paseo de los Tamarindos No. 400-B, Piso 22
Colonia Bosques de las Lomas
Código Postal 05120, México, Distrito Federal
Tel.: (52)55-3000-0600
Fax: (52)55-3000-0698

2.3 Arbitration Agreement

43.
The arbitration agreements specified below were executed by the parties.
44.
Clause 37.2 of the Financed Public Works Contract entered into between PETRÓLEOS MEXICANOS, PEMEX REFINACIÓN and CONPROCA provides that:

"37.2 Jurisdiction. All the disputes or petitions a rising in connection with this Contract, or the breach, termination or validity thereof, other than technical disputes which must be resolved pursuant to Clause 23 hereof, must exclusively be resolved by arbitration in accordance with the Conciliation and Arbitration Regulation of the International Chamber of Commerce valid at the time. The governing law on the merits will be that stipulated in Clause 19.1 hereof. The arbitration location will be Mexico City, D.F., and the arbitration board will have three members, appointed in accordance with said Regulation. Arbitration will be conducted in Spanish. The arbitration award will be final and binding for the Parties. The parties expressly waive the right of any other jurisdiction to which they may be entitled due to their domiciles, nationality or any other reason.

45.
Clause 19.2 of the Unit Price Public Works Contract entered into between PEMEX REFINACIÓN and CONPROCA provides:

"19.2 Jurisdiction. The parties agree that the disputes or petitions arising in connection with this Contract, other than technical disputes which must be resolved pursuant to Clause 13 hereof, must exclusively be resolved by arbitration in accordance with the Conciliation and Arbitration Rules of the International Chamber of Commerce valid at the time. The governing law on the merits will be that stipulated in Clause 19.1 hereof. The arbitration location will be Mexico City, D.F., and the arbitration board will have three members, appointed in accordance with said Rules. Arbitration will be conducted in Spanish. The arbitration award will be final and binding on the Parties. The parties expressly waive the right of any other jurisdiction to which they may be entitled due to their domiciles, nationality or any other reason."

46.
Clause thirteen of the Agreement dated November 15, 2000 entered into between PEMEX REFINCIÓN and CONPROCA provides:

"This agreement will be regulated and interpreted by United Mexican States’ federal laws, wherefore all the controversies that could arise regarding it will be exclusively solved by arbitration according to Reglamento de Conciliación y Arbitraje (Settlement and arbitration Regulations) of the International Chamber of Commerce in force at the time. The arbitration site will be Mexico City, Federal District, and the arbitration tribunal will be composed of three members appointed as per the aforementioned regulations. The arbitration award will be final and compulsory for the parties".

47.
Clause twelve of the Direct Expense Payment Agreement dated January 8, 2001 entered into between PEMEX REFINACIÓN and CONPROCA provides:

"This agreement will be regulated and interpreted by the United Mexican States federal laws; therefore all the controversies that may arise regarding it will be exclusively solved by arbitration, according to Reglamento de Conciliación y Arbitraje (Conciliation and Arbitration Regulations) of the International Chamber of Commerce in force at such time. The place of arbitration will be Mexico City, Federal District, and the arbitration tribunal will be composed of three members appointed as per the referred regulations. The arbitration award will be final and binding on the parties."

48.
Clause seven of the Critical Event Adjustment Agreement entered into between PEMEX REFINACIÓN and CONPROCA on December 12, 2000 provides:

"Seventh. This Agreement shall be governed and interpreted according to United Mexican States’ Federal Law. All controversies related to this Agreement shall be solved as per Clauses 23 and 37 from Public Works Contract."

49.
Clause twenty-thee of the Culmination Agreement for Public Works Contract No. PR-SP-035-97, entered into between PEMEX REFINACIÓN and CONPROCA on April 20, 2001, provides:

"TWENTY THIRD.-This Agreement shall be governed and interpreted in accordance with the Federal laws of Mexico. All controversies that may arise in relation to this Agreement shall be resolved in accordance with Clause 37 of the Contract."

50.
Clause fourteen of the Agreement dated July 7, 2000, entered into between PEMEX REFINACIÓN and CONPROCA, establishes:

"This Agreement will be effective and interpreted in conformity with the Federal Laws of the United Mexican States, therefore all the controversies that could a rise in regard with this agreement will be solved exclusively through arbitration according to the Reglamento de Conciliación y Arbitraje de la Cámara de Comercio Internacional (Conciliation and Arbitration Regulation of the International Commerce Chamber) in force at this moment, the arbitration headquarters will be Mexico City, Federal District and the arbitration tribunal will be made up of three members appointed in accordance with said regulations. The arbitration award will be final and binding for the parties."

51.
Clause five of the Addendum to the Provisional Payment Agreement dated July 7, 2000, entered into between PEMEX REFINACIÓN and CONPROCA dated October 31, 2000 provides:

"This addendum will be effective and interpreted in conformity with the Federal Laws of the United Mexican States, therefore all the controversies that could a rise in regard with this agreement will be solved exclusively through arbitration according to the Reglamento de Conciliación y Arbitraje de la Cámara de Comercio Internacional (Conciliation and Arbitration Regulation of the International Commerce Chamber) in force at this moment, the arbitration headquarters will be Mexico City, Federal District and the arbitration tribunal will be made up of three members appointed in accordance with said regulations. The arbitration award will be final and binding for the parties."

52.
Clause eight of the Addendum to the Provisional Payment Agreement dated July 7, 2000, entered into between PEMEX REFINACIÓN and CONPROCA dated February 28, 2001 provides:

"This addendum will be governed and interpreted by United Mexican States federal laws, therefore all the disputes that may arise regarding it will be exclusively resolved by arbitration, according to Settlement and Arbitration regulations from the International Chamber of Commerce in force in that time. Arbitration headquarters will be Mexico City and arbitration tribunal will be comprised by three members appointed as per referenced regulation. Arbitration award will be final and binding for the parties."

53.
Clause seven of the Addendum to the Provisional Payment Agreement dated July 7, 2000, entered into between PEMEX REFINACIÓN and CONPROCA on April 16, 2001 provides:

"This addendum will be regulated and interpreted by United Mexican States federal laws, therefore all the controversies that could arise regarding it will be exclusively solved by arbitration, according to Reglamento de Conciliación y Arbitraje (Settlement and Arbitration Regulations) from International Chamber of Commerce in force at such a time. Arbitration headquarters will be Mexico City and arbitration tribunal will be made up of three members appointed as per referred regulations. The arbitration award will be final and compulsory for the parties."

2.4 Composition of the Arbitration Tribunal

54.
According to clauses 37.2 of the Financed Public Work Contract, 19.2 of the Unit Price Public Work Contract, Thirteenth of the Complementary Works Agreement, Seventh of the Critical Event Adjustment Agreement, Twenty-Third of the Culmination Agreement for Financed Public Works Contract, Fourteenth of the Debt Acknowledgement Agreement, the Arbitration Tribunal is composed of three members appointed as per the Rules of Conciliation and Arbitration of the International Chamber of Commerce.
55.
For such purpose, in its claim, the plaintiff proposed Mr. Bernardo Cremades Sanz-Pastor, as arbitrator, who on October 25, 2001 was confirmed by the Secretary General of the ICC's International Court of Arbitration.
56.
In its brief dated October 9, 2001, the defendant proposed Attorney Alejandro Ogarrio Ramírez as arbitrator, who was confirmed by the Secretary-General of the ICC's International Court of Arbitration on October 25, 2001.
57.
The ICC's International Court of Arbitration appointed Juan Pablo Cárdenas Mejía as Chairman, in response to the proposal from the Colombian National Committee on December 14, 2001.
58.
According to the Terms of Reference, the arbitration site is Mexico City, Federal District.
59.
Consequently, and according to article 25.3 of the Rules, the Award is issued at such place.

2.5 Applicable Law

60.
Regarding the applicable law, there is no controversy between the parties.
61.
The federal laws of the United Mexican States are applicable to the contracts and agreements that are the subject matter of this controversy according to the following provisions of the parties:
62.
a) Clause 37.1 of the Financed Public Works Contract provides the following:

"37.1 Governing Law. This Contract will be governed and interpreted under federal Mexican Laws."

63.
b) Clause 19.1 of the Unit Price Public Works Contract provides the following:

"19.1 Governing Law.

This Contract will be governed and interpreted under Mexican federal laws.

64.
c) Clause thirteen of the Complementary Works Agreement, which in its relevant section provides:

"This agreement will be regulated and interpreted by United Mexican States’ federal laws..."

65.
d) Clause Seven of the Critical Event Adjustment Agreement, which provides:

"This Agreement shall be governed and interpreted according to United Mexican States’ Federal Law...",

66.
e) Clause twelve of the Direct Expense Payment Agreement, which in its relevant section provides:

"This agreement will be regulated and interpreted by the United Mexican States federal laws."

67.
f) Clause twenty-three of the Culmination Agreement for Financed Public Works Contract which in its relevant section establishes:

This Agreement shall be governed and interpreted in accordance with the Federal laws of Mexico."

68.
g) Clause fourteen of the Debt Acknowledgement Agreement, which in its relevant section establishes:

"This Agreement will be effective and interpreted in conformity with the Federal Laws of the United Mexican States."

2.6 Background of the Controversy

69.
It is the background of the controversy contained in the Award on Liability dated December 17, 2008, referred to by the Tribunal.

2.7 Process Development

2.7.1 Process Development up to the Award on Liability

70.
The development of the process up to the Award on Liability dated December 17, 2008 is contained in such Award. Therefore, the Tribunal refers to it.

2.7.2 Award on Liability

71.
On December 17, 2008 the Award on Liability was issued, being notified to the parties on December 18, 2008, and being subject to interpretation and correction request, which the Tribunal decided through Addendum dated March 16, 2009. The content of such Partial Award is incorporated for reference into this Award.

2.8 Process Development Starting from the Award on Liability

72.
After the Addendum to the Award on Liability, through Procedural Order No. 14 dated June 9, 2009, the Timetable for the quantum stage was established.
73.
By means of briefs dated November 30, 2009 and according to the provisions of the Procedural Order, the parties submitted their Briefs regarding their claims that had been declared admissible through the Award on Liability.
74.
[sic]
75.
On May 27, 2010, it specified that the term to submit reply briefs would expire on May 31, 2010.
76.
On May 31, 2010 each party submitted its Reply to the Briefs that had been submitted by the other party on November 30, 2009.
77.
On June 10, 2010 CONPROCA submitted electronic media to the Tribunal with support documentation on the costs it incurred, including the costs related to its subcontractors.
78.
Through communication dated January 19, 2010, the Tribunal ordered the parties to have their experts meet in order to examine the different aspects discussed in their reports in order to try to reach agreements on the different topics contained therein and gave instructions on this specific matter. In the same communication, the Tribunal invited the parties to consider the possibility of proposing, by common agreement, the name of an independent expert who would assist the Tribunal in the analysis of some of the strictly technical or financial points, therefore not the legal points, where no agreement had been reached by the experts of the parties.
79.
Through communication dated January 29, 2010, CONPROCA requested a clarification regarding the situation of the resolution allegedly prepared by Pathfinder, and specifically, if it were admissible as it was submitted, since it had no signatures, no resumes were attached and it did not identify the people who prepared it. Likewise, it requested the same clarification on the document called "Quantum Report prepared by PEMEX" (Annex D-Cuan-2), in relation to which, it mentioned, in addition, that it was not clear if this report was a factual witness statement or an expert report.
80.
Through communication dated February 5, 2010 PEMEX indicated, regarding the lack of signature, that Pathfinder’s report could not be attributed to a single expert. It stated that due to budgetary reasons, the quantum of PEMEX’s claims with smaller quantum was directly made by its technical areas. It attached a signed copy of Annexes D-Cuan-2 and D-Cuan-3, and stated that such Annexes are not a witness statement but a technical and financial analysis prepared by personnel of PEMEX and, in consequence, they are part of PEMEX's own Memorial dated November 30, 2009.
81.
In communication dated February 9, 2010, in addition to making other statements, CONPROCA reiterated its request to the Tribunal to clarify the situation of Pathfinder’s report. It added that CONPROCA does not oppose the use of factual statements to address the claims with minor value, but it considered an evident breach of the due process to present factual witness statements under the appearance of attorney's arguments, retain all the information on the authorship of such factual allegations, and refuse to present the individuals responsible, for questioning.
82.
Through communication dated February 22, 2010, the Tribunal, taking into consideration Procedural Order No. 6, requested the defendant to supplement the Quantum Report in the sense of indicating the people responsible for the preparation of the Report, the reasons validating its suitability and its signature. Likewise, it requested that the Quantum Report prepared by Pemex's personnel meet the requirements established in Procedural Order No. 6, without this implying a statement by the Tribunal on the nature and evidentiary value of such Report.
83.
On March 3, 2010 Pemex met the request of the Tribunal, submitting supplements to the presented reports.
84.
Through communications dated March 30 and 31 and April 5, 2010 the parties made their proposals regarding the appointment of a Tribunal Expert and the opportunity on which such appointment will be made.
85.
Through communication dated April 6, 2010, the Tribunal stated the mission of the Tribunal Experts and instructed the parties on the procedure to be followed for the appointment of Tribunal Experts.
86.
Through communications dated April 22, 2010, both PEMEX and CONPROCA presented their candidates for Tribunal Experts.
87.
Once the foreseen procedure was carried out, through communication dated May 24, 2010, the Tribunal decided to appoint Mr. R. Peter Davidson from Drivers Consult Ltd and Purvin & Gertz as Tribunal Experts.
88.
Through communication dated May 27, 2010 the Tribunal clarified that the date to present the reply to the Quantum Memorial from each party was May 31, 2010.
89.
On May 31. 2010 each party submitted its Reply brief to the Quantum Memorial submitted by its counterparty.
90.
Through communication dated June 15, 2010; CONPROCA informed the Tribunal that due to its commitments, Mr. Davison had decided to withdraw from the position of Tribunal Expert.
91.
By decision of the Tribunal, the experts from both parties held meetings and exchanged information in order to determine the aspects on which they could reach an agreement, but this agreement never happened.
92.
Regarding CONPROCA's request to reschedule the hearing scheduled for August 2010, through communication dated June 18, 2010 the Tribunal informed the parties about its decision to maintain the originally scheduled hearing and indicated that it had reserved the week beginning November 8, 2010 to carry out the activities of the hearing that could not be executed in August, 2010.
93.
Through communication dated June 23, 2010 CONPROCA proposed new candidates to replace Mr. Davison. In addition, it requested that a separate hearing be held, where the Claims for Additional Works, the Claims for Added Value and the Counterclaims be held in August 2010, and the Claims for Delays and Disruptions be held in November, 2010.
94.
On June 28, 2010 PEMEX opposed CONPROCA's request. Likewise, on that date, it sent a communication to Purvin & Gertz reporting the assertions made by CONPROCA to the Tribunal regarding them. Concerning such communication, CONPROCA indicated on June 29, 2010 that it could affect the independence of Purvin & Gertz.
95.
On June 29, 2010, Procedural Order No. 15 was issued by the Tribunal, deciding to grant the defendant a term of five days to issue a statement on the three candidates proposed by CONPROCA, a term during which it could oppose two of such candidates. In addition, the Tribunal said that there was no reason to doubt the independence of Purvin & Gertz. In any case, the Tribunal gave instructions to the parties to refrain from having unilateral communication with the Tribunal Experts, except when it requests so or when the experts require information to carry out their mission. On the other hand, the Tribunal denied the request for a separate hearing, indicating that the date for the Hearing on Quantum was set through Procedural Order No. 14 dated June 9, 2009, which was issued after the two parties had the opportunity to state their points of view on this matter. It added that CONPROCA had made no remarks either when the conference of experts was discussed or during the process to appoint the expert. The Tribunal concluded that there were no unexpected circumstances that may have arisen to determine that the hearing that was to begin on August 16 of the current year would have to be divided into two parts.
96.
Through communication dated July 2, 2010 Pemex rejected two of the experts proposed by CONPROCA, other than Mr. William Schwartzkopf.
97.
Through communication dated July 5, 2010 the Tribunal decided to appoint Mr. William Schwartzkopf as additional expert to assist the Tribunal.
98.
Through communication dated July 5, 2010 addressed to the Tribunal Experts, the Tribunal informed them of their appointment stating that their function was to assist the Tribunal "in the analysis of some of the strictly technical or financial points, therefore not the legal ones, where no agreement had been reached by the Parties".
99.
Through communication dated July 5, 2010, CONPROCA requested clarification on the dates of the hearing. Likewise, regarding the decision of the Tribunal not to defer (or separate) the hearing, it stated that although it did not seek a reconsideration of the Tribunal’s resolution, it reserved its rights regarding the decisions taken in Procedural Order No. 15, in the event that its capacity to present its case was compromised. It added that the concern regarding the neutrality of Purvin & Gertz remained. Therefore, CONPROCA also reserved its rights on this issue. Finally, it added that the response from Purvin & Gertz did not say that it had experience in the areas at issue; nor did it address the concern that the engineers appointed by PGI had made no analysis of the loss of productivity. Consequently, it also reserves its rights on this matter.
100.
Through Procedural Order No. 16 dated August 1, 2010 the Tribunal, taking into consideration the opinion of the parties, gave instructions for the execution of the hearing.
101.
On August 2, 2010 the parties submitted their Pre-Hearing Briefs on Quantum, to which they attached the reports of their experts and, in the case of CONPROCA, witness statements.
102.
Between August 16 and 26, 2010, the hearing was held in Mexico City. The execution of such hearing required simultaneous translation and transcription, which are contained in the file.
103.
Through communication dated October 19 2010, the report of the Tribunal Experts was submitted to the parties.
104.
On November 3, 2010 both parties presented their comments on the report of the Tribunal Experts.
105.
Through communication dated November 5, 2010, CONPROCA requested that the Pathfinder report attached by PEMEX to its brief of November 3, 2010 not be considered, because such report was not a document from the parties and the Tribunal had excluded any new presentations of evidence.
106.
The Final Hearing on Quantum was held on November 8 and 9, 2010. The relevant transcriptions are part of the file. In such hearing the Tribunal provided that the experts from both parties could make presentations about the Pathfinder report mentioned in the previous paragraph. In any case, the Tribunal took into consideration such report as part of the allegations presented by PEMEX.
107.
At the end of the hearing held on November 9, 2010, PEMEX made objections to the independence of expert William Schwartzkopf as an expert of the Arbitration Tribunal. In communication dated November 15, 2010, PEMEX considered such challenge applicable to the other experts appointed by the Arbitration Tribunal, due to the way in which they performed their work and the fact that all of them shared the same opinions and conclusions. Likewise, it supported its objection in a communication dated November 30, 2010 and reiterated it in the communication dated December 6, 2010.
108.
Throughout the hearing as well as in communications from November 22, and December 2, 2010, CONPROCA opposed PEMEX's request. No comments were made by the Tribunal Experts, whom the Tribunal informed about the objection by means of communication dated November 24, 2010.
109.
Through Procedural Order No. 17 the Tribunal decided to deny the challenge made by PEMEX against Mr. Schwartzkopf due to lack of independence, which had been extended to the other experts appointed by the Tribunal. For such purpose, the Tribunal stated that the Tribunal Experts must be independent and, since the standards which refer to them do not determine how to evaluate this independence, then a standard similar to that applied to the arbitrators will be applied. Following the "IBA Guidelines on Conflicts of Interest in International Arbitration", it added that there is a justified doubt on the matter of the arbitrators' independence, when a reasonable and informed third party would reach the conclusion that there is a probability that the arbitrator (in this case the expert) may be influenced by other factors other than the merits of the case that had been submitted by the parties. In the actual case it indicated that from the email invoked by PEMEX it was gathered that the expert was not working and had never worked with some of the parties or law firms, but it had had matters in which CONPROCA's expert (Marsh Risk Consulting) had participated and in which Mr. Schwartzkopf had acted as expert witness. The Tribunal stated that the fact that the two experts had coincided in another action did not imply in any manner a lack of independence or impartiality to act in this case. On the other hand, and concerning the expressions used by one of the Tribunal Experts to disqualify the opinions of the expert from one of the parties, it concluded that they did not allow the assertion that the Tribunal Experts had no independence or impartiality. Finally, regarding the remarks made by PEMEX on the analysis performed by the Tribunal Experts, it mentioned that it is an aspect that does not refer to the independence of the expert, but to the quality of its work and its evidentiary merits, a circumstance that must be evaluated through the examination of the different probatory elements, to adopt a decision in this case.
110.
On February 15, 2011, the parties presented their Post-Hearing Briefs on Quantum.
111.
On March 15, 2011, the parties submitted to the Tribunal their Submissions on Costs.
112.
Through communication dated April 26, 2011, CONPROCA stated that it confirmed its request in the sense that the amounts relative to the value added tax (VAT) as well as the remaining taxes applicable in Mexico were added to the quantified amounts. For this purpose, it, specified that the rate currently in force in Mexico is 16%. Therefore, it requested that VAT be quantified by the Tribunal at this rate on the awarded principal amount, and, besides, that it is specified that granting of the VAT will be subject to the rate in force at the time of payment, in the event that such rate were different from the rate currently in force.
113.
On October 19, 2011, the proceeding was declared closed by the Arbitration Tribunal under the terms of article 22(1) of the Rules.

2.9 Process Completion

114.
Through a communication dated December 16, 2011, the Secretariat of the ICC International Court of Arbitration informed that the Court extended the period to render the Final Award to January 31, 2012.

3 TRIBUNAL CONSIDERATIONS

115.
For purposes of analysis of the quantum of each of the parties' claims, the Tribunal considers pertinent to initially specify the scope of the Award on Liability in the light of the res judicata.

3.1 Res Judicata

116.
The arbitration award is binding on the parties, as established in Article 28, Number 6, of the Rules and binding on them precisely as stated in Article 1461 of the Mexican Commercial Code. From this point of view, the award constitutes res judicata.
117.
Such characteristic applies to both its ruling and all the aspects of the factual grounds, which constitute the basis for the decision contained in the ruling, in other words, its ratio decidendi, since all of that is part of the decision adopted by the Tribunal.
118.
This has been established by international jurisprudence and doctrine and doctrine and Mexican jurisprudence. In that regard, the International Law Association (ILA), in its report on Lis Pendens and Res Judicata in the 2009 International Arbitration, stated (Section II of its Recommendations) that the res judicata extends both to the resolutions adopted and to the reasoning required to reach such resolutions.
119.
Along the same line of thought, the Supreme Court of Justice of Mexico, in the decision dated April 28, 1955, established1:

"For a long time, the principle according to which the enforceability of the res judicata is only inherent to the ruling points of the judgment prevailed in the procedural law doctrine; such thesis is related to that which conceives the whole sentence as a psychologically complex act, since it entails the performance of an intellectual activity through the findings of law of the ruling, aimed at subsuming, in the general rule, the concrete hypothesis set out in the proceedings, by the reasoning suitable to the case and the performance of an act of will contained in the ruling points, which precisely constitute the decision as an act of sovereignty or an act by right of dominion. However, lately, a reaction has taken place both in the doctrine field and in the court precedent field, tending to recognize the binding enforceability to the findings of law of the ruling, by considering that the judgment constitutes a unit and that the reasoning contained therein constitute fundamental elements to determine the precise scope of the decision;..."[Free translation from the original document]

120.
Consequently, for quantum purposes, both the ruling on the Award on Quantum and the findings of law thereof will be taken into consideration.

3.2 CONPROCA’s Claims

121.
For quantum purposes of CONPROCA’s claims that were awarded to it in the Award on Liability, the Tribunal considers it admissible to initially determine some aspects that have a general scope, to, consequently, analyze each one of such claims.

3.2.1 Applicability of COPPU Limits

122.
In the ninth point of the ruling on the Award on Liability, it was stated: "To declare that PEMEX REFINACION’s liability due to CONPROCA’s added value or additional work claims does not exceed the amount of eighty million dollars as per the COPPU."
123.
In its Quantum Memorial, CONPROCA established that, during the performance of the contract, there were agreements between CONPROCA and PEMEX on additional work quantum matters. Since the amount of such agreements is over eighty million dollars, and the Tribunal specified that the COPPU limit was applicable except in the event of an agreement between the parties, it must be concluded that PEMEX must pay the values relative to such agreements that were not challenged2. On the other hand, CONPROCA also established3 that the limit set forth in Clause 5 of the COPPU covers amounts for which the procedure established in the COPPU was totally completed, starting with a work order request by CONPROCA and ending with the issuance of a work order by PEMEX. In view of the foregoing, if a work order was not issued, the amount in dispute would not be payable according to the COPPU and neither (logically) would it be subject to the cap according to Clause 5 referred to above.
124.
CONPROCA added that the claims based on SGS Resolutions are not subject to the cap of Clause 5 of the COPPU, to the extent that in Clause 23 of the COPF it is established that the opinion given by the Independent Expert [SGS] will be final and binding on the parties, except in the event of manifest error, therefore, in cases in which the Tribunal rejected PEMEX’s manifest error arguments, the Resolutions will be totally enforced. For that purpose, it referred to the Award on Liability and stated that it addresses in a separate section "CONPROCA’s Claims based on SGS Resolutions not affected by Manifest Error or lllegalit y" (Section 3.5.1) and, from that point, the Tribunal unequivocally asserts that CONPROCA’s Claims "shall be accepted". It stated that, in the Tribunal decision, "CONPROCA’s Claims for Additional Works" (Section 3.5.3) and CONPROCA’s Claims based on SGS Resolutions (Section 3.5.1) were addressed separately, thus confirming that the final resolution on Clause 5 of the COPPU does not intend to cover claims based on SGS Resolutions.
125.
Additionally, it stated that there are two other sources of compensation for CONPROCA that are not affected by the cap established in Clause 5 of the COPPU. It particularly mentioned the breach of the Contract and illicit enrichment. Regarding the breach, it asserted that the award itself clearly establishes that the Contract breaches by PEMEX are not subject to Clause 5 of the COPPU. CONPROCA then considered that this principle applies to compensation for three types of claims that are outside of the scope: Claims for Value-Added Works paid according to the Complementary Works Agreement (CTC); claim CRA-135 (Increase in Quantity and/or Size of Pump Stations Buildings), and Claims for Poor Engineering and Additional Works of Civil and Mechanical Engineering. Finally, it stated that, the claim for illicit enrichment is valid as for what exceeds the limit established in the COPPU.
126.
In turn, PEMEX stated that the Arbitration Award ruled that the limit of eighty million [dollars] established in the COPPU will be complied with. PEMEX added that the Arbitration Tribunal decided that neither the Debt Acknowledgement Agreement dated July 7, 2000 nor the Complementary Works Agreement dated November 15, 2000, implied modifications by the parties to the COPF or the COPPU, so the agreed-on limit of eighty million [dollars] had not been modified. It stated that the Arbitration Tribunal considered that the amount of US$ 78,498,075, obtained from the sum of the two amounts agreed on by the parties in the above-mentioned agreements, did not exceed the limit established in the COPPU. PEMEX stated that CONPROCA included its claims CRA-072 (Relative to CAD-WORBL# 3-122-01/02, for works affected and delayed due to delay in acquisition of land and necessary works for the installation and demolition of temporary fence) and CRA-119 (Relative to CAD-WOR-ALL-152 Part A, on electric power supply by Contractor) as part of its claim of Non-Recoverable Expenses, when those claims are about additional works subject to the above-mentioned limit US$ 80 million. Likewise, it stated that both the claims for additional works based on SGS resolutions (the so-called "Annex A" of CONPROCA’s Quantum Memorial dated November 30, 2009) and the "value-added works and additional works" (identified as "Annex B" of CONPROCA's Quantum Memorial dated November 30, 2009) and the new claim for "illicit enrichment" are included within the limit of US$ 80 million. Finally, it noted that CONPROCA insists in the quantum of claims for additional work that the Arbitration Tribunal refused since it considered them outside of the arbitration. Thus, CONPROCA quantified alleged damages relative to its claims for CAD-WOR-136 (Cable replacement), CAD-WOR-156 (Additional hissing tests in Block No. 2 of the Refinery) and CAD-WOR-143 (Supply and installation of additional safety valves), that were not the subject of a pronouncement by the Arbitration Tribunal.
127.
On this point, the Arbitration Tribunal considers:
128.
In point nine of the ruling on the Award on Liability, it stated:

"NINTH: To declare that PEMEX REFINACION’s liability due to CONPROCA’s added value or additional work claims does not exceed the amount of eighty million dollars as per the COPPU."

129.
Regarding this aspect in the factual grounds for the award, the Tribunal stated (Page 90):

"From this point of view, the tribunal considers that, unless agreed by the parties, the limit of eighty million dollars shall be respected regarding COPPU’s subject matter."

130.
Likewise, it added:

"As a result, for concept of work variations or additional works, PEMEX is not bound to pay an amount exceeding US$80 million."

131.
Thus, from this point of view, it is clear that the limit enshrined in Clause 5 of the contract is applicable to all work variations or additional works, as established below for the different categories stated by CONPROCA.

3.2.1.1 Quantum Agreements

132.
In its Quantum Memorial dated November 2009, CONPROCA stated that the amounts effectively paid by PEMEX, added to the amounts for which there was a full agreement both for the work volumes and for unit prices total US$ 91.6 million. It added that these agreements, recorded in quantum documents signed by both Parties, emphasize PEMEX's intent to fully compensate CONPROCA for the works performed.
133.
In this regard, the Tribunal considers:
134.
As established in the Award on Liability, except for agreement by the parties, the limit of eighty million dollars established in the COPPU must be complied with regarding the subject matter of the COPPU.
135.
Thus, for the limit established in the COPPU not to be applied to the works that are subject matter thereof, it is required for the parties to have clearly stated their will not to comply with such limit.
136.
Furthermore, it is not unnecessary to remember that, as established in the Award on Liability, Article 70 of the Ley de Adquisiciones y Obras Públicas of Mexico (LAOP) [Law on Procurement and Public Works] states that "Agencies and entities will be permitted, within the approved investment program, under their responsibility and for founded and explicit reasons , to modify public work contracts by agreements, provided that they, jointly or severally, do not exceed twenty-five percent of the amount or period agreed on in the contract, or imply substantial variations to the original project." (Underlined)
137.
It is clear that, when the parties limit themselves to sign quantum documents, they are not agreeing to the contract's modification, since those documents only imply that the parties agree to the aspects related to the value of the relative works, but it does not imply that they have accepted that such works must be acknowledged despite the limit established in the COPPU. Furthermore, from a logical point of view, the quantum action is prior to the determination on whether or not it exceeds the limit and, therefore, it cannot be accepted that the quantum agreement implies that the limit established in the COPPU is exceeded.

3.2.1.2 Enforceability of Limits to SGS Resolutions

138.
In regard to the enforceability of the limit to the SGS Resolutions, the Tribunal considers it admissible to recall that the following was stated in the Award on Liability:

"COPF established in its Clause 23 the existence of an Independent Expert to solve the technical controversies and for such purpose it established:

"TECHNICAL CON TROVERSIES" "In the event of any technical dispute between the parties (including without limitation concerning the compliance or non - compliance with the Contract Specifications, the appropriate integration of the Units in the operations of the Refinery, or if a delay in the Works can be attributed to an Act of God or Force Majeure or to causes imputable to the Owner) which cannot be resolved promptly pursuant to Clause 22 hereof, the parties will submit the dispute to an Independent Expert. The opinion of the Independent Expert is final and binding for the parties, except in the event of manifest error. All costs of the Independent Expert will be paid by the party against which the opinion is rendered or, if the opinion is not totally against one party, the costs of the Independent Expert will be distributed between the parties as indicated by the Expert" (Underlined)

"Likewise, when discussing the possibility that Contractor requested a work order, the parties stated in Clause 6.2 from COPPU that"Should the Owner and Contractor not reach an agreement as to the need for implementing the variations proposed by Contractor, or should the Owner (after obtaining the opinion of the Technical Auditor) disagree that the proposal constitutes a request for additional work not included in the scope of the Financed Public Works Contract, then the parties will submit the dispute to an Independent Expert, pursuant to Clause 13.2 of this Contract. If the decision of the Independent Expert is in Contractor’s favor, the Owner will be obligated to issue the corresponding Work Order." (Underlined)

139.
In such manner, in accordance with the Contract, the Independent Expert's function is to determine if the Contractor's proposal is in fact a request to execute additional works, not included in the scope of the Finance Public Works Contract. Thus, the Independent Expert's work does not include the fact of deciding if the work orders are or are not within the limit considered in the COPPU. Therefore, the fact that there is a resolution by the Independent Expert does not mean that the work to which such report refers to is not subject to the COPPU limit.
140.
Likewise, it is clear that the limit foreseen by COPPU applies also to additional works according to the Independent Expert's resolutions because as per clause 6.2 of the COPPU if the Independent Expert decides in favor of the contractor, the Owner has the obligation to issue the relative Work Order and such Work Orders are subject to the limit foreseen in the 5th clause of the Contract because the Contract did not establish otherwise. Furthermore, the objective of the limit imposed by COPPU is to let the Owner be clear on how much the amount of its obligations may be in case of additional works, which obviously must be applied to all the assumptions where additional works exist, either by the agreement between the parties or by decision of the independent expert.
141.
The fact that in the Award on Liability, "CONPROCA's Claims based on SGS Resolutions not affected by Manifest Error or Illegality" (Section 3.5.1) were studied separately to point out which of CONPROCA's claims "shall succeed", does not mean they will be acknowledged without being subject to the COPPU limit, because in any case in the ninth point of the Award ruling, it stated that "the responsibility of PEMEX REFINACION due to value-added claims or additional works from CONPROCA does not exceed the amount of eighty million dollars in accordance with COPPU." To the extent that the independent expert's reports in favor of CONPROCA refer to value-added or additional works, they will determine a responsibility by PEMEX for these items and therefore, in accordance with the Award's text, the COPPU limit is applicable.
142.
Thus, for the Tribunal, additional works resulting from the independent expert's reports are subject to the limit foreseen in the COPPU's 5th clause.

3.2.1.3 Incompliance of the Complementary Works Agreement

143.
CONPROCA indicated that in the Award it is clearly established that breaches to the contract by PEMEX are not subject to COPPU's 5th clause. It considered then that this principle applies to compensation for several types of claims outside of the scope. In this sense, it makes reference to the "Claims of Value-Added Works" that were paid in accordance to Complementary Works Agreement ("CTC") for which, even though CONPROCA presented an important amount of supporting documents, PEMEX did not even make a serious attempt to review it. Likewise, even though CONPROCA offered to extend the term of the bond granted in accordance with the CTC, PEMEX rejected this offer and executed such bond in August, 2001. CONPROCA also made reference to claim CRA-135 (Increase in Quantity and/or Size of Pump Station Buildings) to point out that PEMEX breached the COPF when it did not provide specific information as required in Clauses 3.1 (h) and 6.1 of the COPF. Finally, it referred to "Additional Claims regarding Deficient Engineering and Civil and Mechanical Works" and stated that as with CRA-135, PEMEX also did not comply with its obligations to exchange information regarding those Claims before the commencement of the Project. Therefore, the Tribunal's decision must be enforced in the sense that "CONPROCA is entitled to claim that related to correction of Pre-engineering or Basic Engineering mistakes..."
144.
Regarding these aspects, the Tribunal considers it admissible to point out the following:
145.
On the Award on Liability (page 93) it was established that:

"However, the Tribunal has to state that the limit foreseen by COPPU is applicable to the work orders to which such contract refers, that is to say, the work orders issued by Owner for altering, modifying, adding or, in a certain way, varying any of the works, as well as to the work orders by Contractor’s request when it considers necessary to introduce a variation to the work. However, it is clear that such limit does not apply to the events that do not have such nature, as those referred to in the Direct Expense Agreement."

146.
Thus, it is clear that in the other cases where there are no attempts to alter, modify, and add or vary the works, the application of the limit considered in the COPPU is not admissible.
147.
From this point of view, regarding the Complementary Works Agreement4 the following is noted:
148.
Such agreement was concluded on November 15, 2000 and in its first clause PEMEX REFINACIÓN and CONPROCA agreed that such Agreement (...) "has as its objective the recognition of the OWNER that there is a present or future debt, derived from various additional work orders completed by virtue of the Unit Price Public Works Contract under the modality of PIDIREGAS." (Underlined)
149.
Likewise, in the second clause it was agreed that "THE OWNER accepts that THE CONTRACTOR has carried out complementary works not included within the financed public works contract, consisting of addition of electrical equipment and its wiring, motor change due to the higher power required by the equipment, and new transformers due to electrical charge increase, which makes it necessary to vary and modify the distributed control systems. Thus, due to the number of requests, the complexity and the time required for performing the detailed review and certification of the backup documents for determining the amount to be paid, THE OWNER shall make a provisional payment in the amount of USA 29'978,075.00 (twenty nine millions nine hundred seventy eight thousand seventy five American dollars) plus the value added tax (...)"
150.
Thus, it is clear that the parties acknowledged that works included in the Agreement mentioned corresponded to complementary works, not included within the scope of the works that would result in the issuing of work orders "requested by work orders carried out under Unit Price Public Works Contract".
151.
Nevertheless, in such Agreement, the parties stated that:

"THE OWNER will issue the certification of the works’ value which it considers valid through a written communication manifesting that it has received the favorable opinion of the Technical Auditor, a sperclause 6 from Unit Price Public Works Contract, made among the parties, mentioned in statement number 2 from this agreement.

"Once works certification is issued through each work order considered as valid, its corresponding amount must be amortized at the amount aforementioned in the second clause from this Agreement, until the total amortization of such provisionally paid amount, if any, is covered."

152.
Thus, by virtue of this Agreement, PEMEX should study the documentation presented in order to decide if it would or would not issue the relative validation, through a work order, taking into consideration the independent expert's concept.
153.
Thus, it must be concluded that the limit foreseen in the COPPU is applied to the Complementary Works Agreement, to the extent that the latter's objective was the acknowledgment of additional works, through work orders subject to the COPPU.
154.
The fact that at the time, PEMEX did not study the documentation presented to decide if it would or would not issue the relative validation, does not affect the rule quoted, because it is clear that when a breach of contract exists, the right of the contracting party affected by such breach is to obtain the reestablishment to the state in which it would be if the contract had been complied with and in this case, if the Agreement had been complied with, the contractor would not have be able to obtain more than what was considered in the COPPU.
155.
On the other hand, regarding claim CRA-135 (Increase in Quantity and/or Size of Pump Station Buildings), according to the Award on Liability, such claim is valid for those buildings which "the bid basis indicated specific dimensions and such dimensions were exceeded" or when the buildings, "without being reasonably necessary they were the result of PEMEX's express request during the execution of the work. In the first case it is clear that it can be concluded that PEMEX is responsible for the supply of specifications. The same conclusion applies for the "Additional Claims regarding Deficient Engineering and Civil and Mechanical Works" to the extent that, as a result of providing deficient engineering, PEMEX breached its obligations. Thus, under these aspects, COPPU's limit is not applicable.

3.2.1.4 Illicit Enrichment

156.
Finally, CONPROCA made reference to the claim for illicit enrichment and stated that it is based on three facts: (i) CONPROCA performed works outside of the scope, (ii) PEMEX did not pay for these works and (iii) there is no agreement, expressed or implicit, that such works would be given for free to PEMEX. CONPROCA added that the Minutes of the Meeting held on December 20, 1999 show that PEMEX gave instructions to CONPROCA to continue with all the works, promising that if one of the work items was outside of the scope, subsequent conversations would be held in this regard. This indication of deferring any conversation about matters related to the scope could only mean that the due compensation would be paid if it were determined that any work was outside of the scope. Actually, by avoiding any conversation on matters related to the scope before carrying out any work outside of the scope, PEMEX made obligatory, likewise, that any conversation on the "limit" of Clause 5 could be held before finishing these works. Having kept the benefit of these works, PEMEX has the obligation, in accordance with the principles of Mexican law on illicit enrichment, to compensate CONPROCA. It added that there is no evidence, in the minutes of the meeting or in any other place, that CONPROCA had accepted the risk that, if it were agreed that the works were outside of the scope, there would not be any payment made for them. Likewise it stated that there is no legal requirement on the matter of enrichment to make CONPROCA demonstrate that PEMEX accepted to pay specific amounts over the limit in order to recover such amounts. All that the Mexican Laws demand is that there is no reason for the enrichment, that is to say an agreement, implicit or explicit, for the works not to be paid. CONPROCA also pointed that administrative law is governed by many principles which prevent PEMEX from undoing the financial balance of the Contract without the due compensation, and which include, among others, the principles of continuity and financial balance. According to the principle of continuity, PEMEX requested that CONPROCA carry out all the works outside of the scope, and it could not rescind the Contract simply for such reason. Therefore, according to the principle of financial balance, PEMEX was (and it continues to be) obligated to reestablish the original negotiation, which was broken when it required that CONPROCA carry out the works before setting any responsibility or quantum.
157.
Regarding the opportunity of its claim, because it was challenged by PEMEX, CONPROCA pointed that through Procedural Order No. 14, June 9, 2009 was set on the procedural timetable as the date for the Quantum Stage. As it was a matter of quantum, CONPROCA presented on time its Claim for Illicit Enrichment contained in its Memorial on Quantum dated November 30, 2009. It added that PEMEX had full opportunity to answer and so it did in its presentation dated May 31, 2010. Also, PEMEX did not say (nor could it say) that the date of CONPROCA's Claim in some way damaged the presentation of its case or that it was not given enough time to answer. In fact, PEMEX did not request an extension of time to lodge the presentation of its Challenge. CONPROCA added that the Claim was never rejected.
158.
PEMEX, in turn, considered that CONPROCA's action for illicit enrichment is not included in the Terms of Reference of the Arbitration. PEMEX added that CONPROCA lost its procedural opportunity to include this action in the arbitration, therefore such arguments must be dismissed by the Arbitration Tribunal. In any case, PEMEX pointed out that according to Mexican Law four elements must coexist to compose illicit enrichment; (i) the enrichment of one individual; (ii) the impoverishment of another; (ii) a relation between the enrichment and impoverishment; and (iv) absence of motive. From this point of view, it affirmed that it was evident that there was a motive. Furthermore, the COPF, the COPPU and other agreements signed by and between the parties are the motive for PEMEX's obligation to pay for additional works that CONPROCA made, as well as the reason for CONPROCA's right to receive as compensation no more than the maximum amount agreed according to the limit agreed in the contract itself and acknowledged by the Arbitration Award in their Award on Liability.
159.
In this regard the Tribunal considers:
160.
According to clause 2, the COPPU has the following object:

"The object of this Contract is the performance by the Contractor of all Works necessary in order to implement possible variations to the Cadereyta Project, implying additional works not included in the scope of the Contract of Finance Public Works requested under Work Orders. Said Works will be carried out by the Contract or pursuant to the Contractual Specifications, in exchange for payment of the unit prices specified in the Catalogue of ltems and according to the terms and conditions hereof." (Underlined)

161.
Thus, the object of the COPPU is to carry out all complementary works that are not included in the scope of the COPF, for which the relative work orders must be requested.
162.
Likewise, clause 6.2 of the COPPU provides:

"6.2 Contractor’s Request for a Work Order.

The Contractor may submit to the approval of the Owner written proposals requesting variations in the Works subject to the Contract for Financed Public Works, including without limitation any variation required due to changes in the Law. Should the Owner (after obtaining the opinion of the Technical Auditor) agree with the variations proposed by Contractor, the Owner will issue a Work Order showing its approval. Should the Owner and Contractor not reach an agreement as to the need of implementing the variations proposed by Contractor, or should the Owner (after obtaining the opinion of the Technical Auditor) disagree that the proposal constitutes a request for additional work, not including in the scope of the Contract for Financed Public Works, then the parties will submit the dispute to an Indepndent Expert, pursuant to Clause 13.2 of this Contract. If the decision of the Independent Expert is in favor of Contractor, the Owner will be obligated to issue the corresponding Work Order. Contractor may not change the works under the Contract for Financed Public Works except by written instruction from the Owner (after obtaining the opinion of the Technical Auditor) through issue of a Work Order; any variation made by Contractor without the respective Work Order may not be collected from the Owner and the cost of said variation or any subsequent modifications will be exclusively paid by Contractor."

163.
Within this framework, clause 4.8 of the COPPU establishes:

"4.8 No Additional Obligation.

As expressly set forth herein, the Owner will not have any obligation arising from this Contract in connection with the performance of the Work."

164.
Thus COPPU expressly set forth that the Owner would not have any responsibility for the execution of works beyond the provisions made therein.
165.
However, regarding the foregoing it is important to recall the statement by the Tribunal regarding the meeting held on December 20, 1999 between the parties. At that meeting, it was stated:5

1. In general, work order requests normally imply a controversy regarding the scope of Clause 4.2 from LumpSum Contract, relevant to implicit obligations, or Clause 6.1 from LumpSum Contract whether the works derived from the existence of underground obstructions in site should be considered out of its obligation scope or not, as it has being analyzed by the group in charge of checking these request validity, lead by Ing. Anuar Dip T.

2. Performance of the works strictly necessary for works completion must be carried out, and it must be determined whether if claimed works are within contractual scope or not. Therefore, the Consortium accepts to take the risk of carrying out works not accepted as required by the Project.

3. Aimed to assure the works to continue without interruption in order for the Project not to suffer affectations, Pemex Refinación and Conproca agree to postpone the resolution of disput es regarding Conproca’s requests.

4. Due to Project’s dynamic, and in order to prevent works interruptions, because it has not been not possible to follow the procedure settle by the Contract regarding Clause 5, Pemex Refinación and Conproca agree to continue all those works required for the Project in order to reach their completion and operation, and to analyze their validity later.

"5. Detailed reviewing and analysis procedures for the claims will be settled within group aforementioned in Point No 1, not interrupting the works. (Underlined)

166.
The following in regard to the foregoing and as stated in the Award on Liability6:

"Thus, it is clear that from the aforementioned meeting, the parties agreed that all the works required for the adequate completion and operation of the project would be pe rformed and then it would be analyzed if they were valid or not, for purposes of their acknowledgement of additional works. Consequently, it is im possible to deny the acknowledgement of additional works, due to the lack o f a previous order, when their acknowledgement would be valid according to COPPU." (Underlined)

167.
As observed, the Tribunal clearly pointed out the conclusion derived from said Act was that the acknowledgement of additional works was impossible to deny due to the lack of a prior order, when such acknowledgement would be allowed according to the COPPU. Therefore, if the COPPU had established a limit to the admissible acknowledgement, and if as stated in the Award on Liability, such limit was not modified by the parties, it is clear that in light of the mentioned Act the acknowledgement of such cases where the limit of the COPPU was exceeded is not admissible.
168.
It must be highlighted that the transcribed Act is not to be interpreted in any way as a broad authorization for the Contractor to carry out works for the necessary amount, since the agreement was to "continue with all works necessary by the Project for a proper termination and operation and further analysis of validity". It was not agree to do without the limit of the COPPU, since no exceptions were made in the Act in this regard.
169.
Things being so, what should occur is that the Contractor follows up the value of additional works that were being performed to consider whether the limit agreed was exceeded or not.
170.
Thus, if the OWNER was to answer for only up to the amount established in the COPPU, CONPROCA could not raise any claim for additional works exceeding such value and therefore the principle of the COPPU must be applied, in the sense that the relative costs must be assumed by the contractor.
171.
It is important to highlight that accepting that the works performed exceed the contractual limits can be charged by the contractor through illicit enrichment, implies ignorance of the value of the contractual provisions to which reference is made.
172.
From the foregoing, it is then inferred that it is impossible to accept that CONPROCA is entitled to be paid as illicit enrichment the amounts for additional works which SGS acknowledged exceeded the limit established in the COPPU.

3.2.1.5 CRA-072 and CRA-119 Claims

173.
Regarding claims CRA-072 (Relevant to CAD-WORBL# 3-122-01/02, works impacted and delayed due to delays in the acquisition of land and works necessary for the installation and demolition of fence) and CRA-119 (Relevant to CAD-WOR-ALL-152 Part A, regarding the provision of electrical power supply by contractor), which CONPROCA included in its claim of non-recoverable expenses and PEMEX considered such was subject to the limit of US$ 80 million the Tribunal considers the following:
174.
The parties agreed the following in the COPPU regarding the object of such contract:

"The object of this Contract is the performance by the Contractor of all Works necessary in order to implement possible variations to the Cadereyta Project, implying additional works not included in the scope of the Contract of Finance Public Works requested under Work Orders."

175.
Point nine in the ruling on the Award on Liability stated:

"NINTH: To declare that PEMEX REFINACIÓN’s liability due to CONPROCA’s added value or additional work claims does not exceed the amount of eighty million dollars as per the COPPU."

176.
Things being so, from this point of view it is clear that the limit enshrined in the 5th clause of the Contract is applicable to additional works not included in the Cadereyta Project which are variations to the provisions therein.
177.
From this perspective the Tribunal notes regarding CRA-072 that according to the SGS Resolution regarding work order CAD-WOR-BL#3-122-1&2-NW, the object of controversy that was decided was "Affected and delayed works due to delay in land acquisition and necessary works in wall's installation and demolition". Likewise, the SGS Resolution stated that CONPROCA indicated that as consequence of the "delay in land acquisition for the expansion of the Cadereyta Project area, by PEMEX REFINACIÓN to the Owner of the land, CONPROCA works at the corresponding area were seriously delayed. Work delays caused the extraordinary mobilization of equipment, material and workforce to recover the delayed Project Scheduled, and prevent further delays. Under such circumstances, CONPROCA had to perform the necessary extraordinary works for the wall's installation and demolition to continue further works."
178.
Regarding CRA-119, the Tribunal observes that it is based on the SGS Resolution relevant to work CAD-WOR-ALL-NW-152, which refers to "Power supply by Contractor". In its Resolution SGS noted PEMEX REFINACIÓN was bound to supply electricity-related services. It added that in this specific case, PEMEX REFINACIÓN did not comply, therefore CONPROCA was forced to supply the electrical power.
179.
Under this aspect, the Tribunal considers that the object of such work orders is not to perform additional works that constitute a variation to the Cadereyta Project and therefore are not subject to the eighty million dollars limit.

3.2.2 COPPU Compliance Procedure for the Execution of Additional Works

180.
PEMEX stated in its documents that the minutes of meeting held On December 20, 1999, did not release CONPROCA from the obligation to comply with the procedure set forth in the COPPU regarding additional works, therefore it could not (i) cease providing notice to PEMEX, through the relative work order request, of its intention to perform additional works according to point 6.2 of clause 6 of the COPPU; (ii) cease submitting, prior to the execution of the works, inspection documents referred to in point 6.3 of the same clause; and (iii) cease to agree with PEMEX on terms according to which additional works would be executed
181.
Regarding these matters the Tribunal notes that clauses 6.2 and 6.3 of the COPPU establish:

"6.2 Contractor’s Request for a Work Order.

"The Contractor may submit to the approval of the Owner written proposals requesting variations in the Works subject to the Contract for Financed Public Works, including without limitation any variation required due to changes in the Law. Should the Owner (after obtaining the opinion of the Technical Auditor) agree with the variations proposed by Contractor, the Owner will issue a Work Order showing its approval. Should the Owner and Contractor not reach an agreement as to the need of implementing the variations proposed by Contractor, or should the Owner (after obtaining the opinion of the Technical Auditor) disagree that the proposal constitutes a request for additional work, not including in the scope of the Contract for Financed Public Works, then the parties will submit the dispute to an Independent Expert, pursuant to Clause 13.2 of this Contract. If the decision of the Independent Expert is in favor of Contractor, the Owner will be obligated to issue the corresponding Work Order. Contractor may not change the works under the Contract for Financed Public Works except by written instruction from the Owner (after obtaining the opinion of the Technical Auditor) through issue of a Work Order; any variation made by Contractor without the respective Work Order may not be collected from the Owner and the cost of said variation or any subsequent modifications will be exclusively paid by Contractor.

"6.3 Procedure for Variations.

"After Contractor receives the Owner’s Work Order, it will prepare and present to the Owner, within thirty (30) days after receipt of the Work Order in question, a project for Catalogue of Items, Scope of the Items, Detailed Performance Program and Physical-Financial Program necessary to carry out the Work under the Work Order in question. The Owner and Contractor will meet in order to agree:

"(i) on the final version of the Catalogue of Items, Scope of the Items, Detailed Performance Program and Physical-Financial Program;

"(ii) the unit p rices of the it ems, with the understanding that the calculation and inclusion of the unit prices will be established by the Owner based on the catalogue of unit prices of Petroleos Mexicanos, enclosed here with as Annex 1 or, in the absence thereof, they will be determined according to the "General Rules for Contracting and Execution of Public Works and Services";

"(iii) the term for the execution of the Work included in the Work Order; and

"(iv) the Work Area where the work under the Work Order will be carried out.

"If the Owner and Contractor do not reach an agreement concerning any of the above points within a term not exceeding twenty (20) days from Owner’s receipt of the Contractor’s project, the parties will submit the dispute to the Independent Expert, pursuant to Clause 13.2 hereof."

182.
Now then, concerning the procedure provided in the COPPU and that agreed by the parties in their meeting on December 20, 1999, the following was stated in the Award on Liability (page 81):

"However, the tribunal shall notice that in the meeting dated December 20th, 1999, the following was mentioned:

"...

"Thus, it is clear that from the aforementioned meeting, the parties agree d that all the works required for the adequate completion and operation of the project would be performed and then it would be analyzed if they were valid or not, for purposes of their acknowledgement of additional works. Consequently, it is impossible to deny the acknowledgement of additional works, due to the lack of a previous order, when their acknowledgement would be valid according to COPPU."

183.
It is clear that if the Tribunal concluded that according to said Act, what the parties agreed was that all the works required for the proper completion and operation of the project would be executed and it would be analyzed later if they were admissible or not this implied that the notice about the works could be made later. To the above is added that clause 6.3 of the COPPU established that CONPROCA must deliver "within thirty (30) days after receipt of the Work Order..., a project for Catalogue of Items, Scope of the Items, Detailed Performance Program and Physical-Financial Program necessary to carry out the Work under the Work Order in question" Consequently, it is evident that if in order to carry out the work it was not necessary to issue a work order, for the same reason, in light of the Contract, CONPROCA had no obligation to deliver the documents referred to in such clause.
184.
On the other hand, it must be added that it does not appear to have been proven that during the execution of the Contract, PEMEX complained to CONPROCA about the omission of the behavior that it is now claiming. The foregoing is relevant to the extent that it could be analyzed as a common practice of both contracting parties in the execution of their contract, which constitutes an essential element to interpret its scope. To the above, it must be added that according to article 1796 of the Federal Civil Code that contracts "obligate the parties not only to that expressly agreed but also to the consequences which according to their nature result from good faith, custom and usage of the law". Consequently if in the light of the COPPU and despite that agreed in the meeting on November 20, 1999, it was really necessary to fulfill the conditions of the COPPU, PEMEX should have called CONPROCA's attention to this matter, otherwise its behavior is not in line with the provisions of article 1796 of said Code.
185.
Due to all the above, the Tribunal considers that CONPROCA cannot be required, for the success of the quantum of its demands, that it fulfilled the conditions indicated in clauses 6.2 and 6.3 of the COPPU.

3.2.3 The Prices of Annexes.

186.
Among the reasons PEMEX stated in general to contravene the quantum made by CONPROCA and its experts, is that the prices included in the annexes to the Contract were not properly integrated. For this purpose, PEMEX stated that on matters of public works, payments could only be made according to that established in the rules on contracting and public spending and it added that the LAOP established that "the acts, contracts and agreements made by the agencies and entities in breach of the provisions from this Law shall be null with the previous consent of the competent authority". Then it noted that the unit prices should be integrated according to the criteria established by Mexican Law therefore "shall be structured exclusively from (i) the direct costs of Contractor (this is, the real value incurred by the contractor for the consumptions matter of each unit price), (ii) the indirect costs, (iii) the financing costs and, (iv) profit charges" Then PEMEX indicated that the unit prices claimed by CONPROCA are ineffective since they do not meet the guidelines established by the COPPU and applicable Law. Specifically, it referred to the extraordinary unit prices for engineering man-hours included in Annex "C-3" and noted that to set them information from the COPF's economic proposal COPF's economic proposal was used; this is a lump sum contract, which is incompatible with the proposal that should have been used. Likewise, it considered that the prices in Annex C-9 and C-19 are not properly integrated since they were unduly exaggerated by CONPROCA, with the result that the final value of the unit price for extraordinary work hours for this equipment was substantially increased to the detriment of PEMEX. In this sense, it pointed out the integration deviated from the industry's practices since, among other irregularities, it considered a very short useful economic life for the equipment, as well as a very low quantity of effective work hours a year for this equipment; likewise it used an interest rate of 23% when it should have used an interest rate in dollars in the range of 8%, since the calculation of the hourly cost for this equipment was made in dollars. Finally, it indicated that an excessively high hourly operating cost for electricity generating equipment, US$ 5.40, was considered.
187.
On its part, CONPROCA stated that there was no legal or factual basis to challenge the annexes and, in any case, the unit prices of Annex C-3 are reasonable in light of the Project where they are being applied. It added that the admissibility of Annex C-3 is a matter of res judicata, since the Award confirmed the admissibility of the COPF as well as the COPPU. Annex C-3, like any of the other 22 Annexes to the COPPU, is a part of such Contract. It asserted that the fact that the Annex, as asserted by PEMEX, would produce unreasonable and unfair results to the detriment of PEMEX was not a legal basis to challenge it. It stated that it was PEMEX who issued such Annex, since it was the PEMEX's Unit Prices Department who analyzed the unit prices proposed by CONPROCA and which approved the rates in Annex C-3 with full knowledge of its terms. In addition, it was PEMEX who was obligated to guarantee that its rates met regulatory requirements. Likewise, in Annex C-3 PEMEX included, simply for its protection, a limit on the rates in eight Units and a note establishing that the unit rates were not applicable to costs due to delays and disruptions. CONPROCA stated that there is no obligation in the LAOP, in the sense that the unit rates must match the direct costs, including, for example direct salaries. It added, as its Mexican expert on the public contracting system stated, that it was one of PEMEX's responsibilities, to determine the parameters of these prices, according to articles 48 and 57 of the LAOP.
188.
On the other hand, it stated that if Annex C-3 was inconsistent with the regulations of the General Rules (which are not part of the LAOP), such violation would be a matter of personal liability for PEMEX's public employees, who made the wrong calculations, but it certainly would not invalidate the resulting agreement. Likewise, it stated that if Annex C-3 was considered not executable, PEMEX would have defrauded CONPROCA, since it induced it to execute works on the basis that it would be compensated according to the rates in Annex C-3, to then breach such Annex once the works were finished. Likewise, PEMEX had defrauded CONPROCA once again, by having said that Annex C-3 complied with Mexican Law, including specific regulations (the LAOP and Rule 3.3.4) that PEMEX argues were violated. In addition, PEMEX would breach the guarantee according to Clause 3.1(c) of the COPF, which stated that "[n]either the execution by the Owner or PEMEX of this Contract or compliance by the Owner or Pemex with their respective obligations arising from the Contract (i) are in conflict with, or cause noncompliance or shall constitute a violation of or noncompliance with any of the Applicable Laws...". CONPROCA emphasized that as explained by Mr. D.G. Kang in his Witness Statement, the fact that there were different rates should not be a surprise, since the engineering rates were an external extension of CONPROCA's considerations on the bid for the unforeseen, additional works. The objective was to avoid an interruption of CONPROCA's financial budget (or its sanction) by adding unexpected works. It added that regarding the unit rate for Unit 31, that is to say, US$ 913.37, PEMEX put a limit on it in the annex.
189.
In order to issue a decision, the Tribunal considers the following:
190.
Firstly, the Tribunal does not consider that there could be res judicata regarding Annex C-3. Certainly, the res judicata is based on everything decided by the Tribunal. The foregoing includes not only the decision itself, but all the considerations needed to reach it. In addition, it includes the implicit assumptions of the decision. In this manner, when the Tribunal decides on a breach of a contract, it necessarily must start from the basis that the contract does not suffer from any of the defects for which the Tribunal could declare its invalidity. In this case, Annex C-3 was in no manner considered in the arbitration award, and it does not constitute an inseparable part of the COPPU.
191.
Secondly, it is clear that it was not contravened that there was an agreement between CONPROCA and PEMEX on Annex C-3.
192.
Thirdly, it is established that Annex C-3 was prepared by PEMEX. Actually, the communication dated January 15, 2001 sent by PEMEX to CONPROCA7 stated:

"In response to your document PC-CONPROCA/PXR(S)1823/00 from September 26, 2000, we are hereby sending Attachment "C-3" developed by Unidad de Concursos, Contratos y Precios Unitarios (Bid, Contract and Unit Price Area), which shall be applied for estimations generated by extraordinary work order from Cadereyta Project shall be paid according to Unit Price Contract PR-SP-036/97." (Underlined)

193.
It is important to emphasize that the content of Annex C3 is different from that proposed by CONPROCA. In this sense, it is noted that while CONPROCA's proposal considered rates between US$ 112.79 and US$ 171.618, the document prepared by PEMEX considered rates between US$ 51.81 and US$ 913.97. Such rates result from dividing the engineering cost for each unit by the number of hours according to CONPROCA's proposal.
194.
Fourthly, regarding the compatibility of such annex with Mexican Law. the following is noted:
195.
Article 59 of the LAOP establishes:

"Article 59.- To make the evaluation of proposals, the agencies and entities shall verify that they include the information, documents and requirements requested in bid basis; that the execution schedule is feasible to execute, within the requested term, with the resources considered by the bidder and, that the characteristics, specifications and quality of the materials are the ones required by the contracting party.

"In addition, the agencies and entities shall verify the proper analysis, calculation and integration of the unit prices, according to the provisions used by the Ministry.

"..." [Free translation from the original document]

196.
In its turn, article 31 of the Regulations of the Public Works Law provides:

"The proposal that the bidder shall deliver in the presentation and opening act, shall incorporate according to the characteristics of the work:

"...

III. Concept catalogues, metering units, work quantities, unit prices proposed, partial amounts and the total of the proposal:

"IV Basic data of materials costs delivered in the work site, labor force and the use of construction machinery;

"V. Analysis of the unit prices for the requested items, structured with direct costs, financing costs of the works and profit charges.

"The procedure for the analysis of the unit prices could be by assignment of scheduled resources or by the yield by houror shift.

"Direct costs shall include the charges for materials, labor force, tools, machinery and construction equipment. [Free translation from the original document]

197.
The General Rules provide for:

"3.3.4. Extraordinary works

"When from the "Dependency" or "Entity" point of view, it is necessary to carryout extraordinary works not covered in the project and in the schedule, the following shall apply:

"1.- Extraordinary works based on unit prices:

"A) If there are unit prices or items stipulated in the contract, which are applicable to the relevant works, the "Dependency" or "Entity" s hall be entitled to order the "Contractor" their execution, and the latter shall be obliged to make them according to such prices.

"B) If for these works there are no unit prices or items in the contract and if the "Dependency" or "Entity" considers as feasible to determine the new prices based on the elements contained in the price analysis already set forth in the contract, it shall proceed to determine the new prices with the participation of the "Contractor", and the latter shall be obliged to execute the works according to such prices.

"C) If it were impossible to determine the new unit prices as set forth in the previous paragraphs, the "De pendency" or "Entity" shall apply the unit prices contained in its current tabulators or alternatively, in order to calculate the new prices, it shall take into consideration the elements that were used as a basis for formulating the prices of the tabulator. In one or another option, the "Contractor" is obliged to execute the works according to the new prices.

"D) If it were impossible to determine the new unit prices as set forth in paragraphs A, B or C above, the "Contractor", at the request of the "Dependency" or "Entity" and within the period appointed by the latter, shall submit to its consideration the new unit prices, together with their relevant analysis, on the understanding that, in order to fix these prices, it shall apply the same criteria it had followed for determining the unit prices set forth in the contract, and so, the "Dependency" or "Entity" shall come to a decision in a period not exceeding 30 (thirty) calendar days. If both parties reached to an Agreement regarding the unit prices referred herein, the "Contractor" is obliged to execute the extraordinary works according to the unit prices.

"...

"In all these case s, the "Dependency" or "Entity" shall provide to the "Contractor" the corresponding work order in writing. In such event, the items, their specifications and the respective unit prices shall be added to the contract for all the relevant purposes, in the terms of the document to be executed." (Underlined)

198.
Finally, PEMEX invokes Article 15 of the LAOP which sets forth:

"The actions, contracts or agreements made by dependencies and entities in contravention of the provisions of the law shall be null and void".

199.
In this context, the Tribunal notes that, as seen, the rule contained in the LAOP regarding unit prices provides that: "The dependencies and entities shall also verify the due analysis, calculation and integration of unit prices as per the provisions issued by the Secretariat". As can be noted, the LAOP did not set forth a rule which the Contract will subject to, and whose breach will cause it to be void, instead it provided a rule of conduct for the agencies or entities which must verify the due analysis, calculation and integration of the prices.
200.
On the other hand, to the extent that the law set forth the violation of the Law's provisions as grounds for nullity, it is clear to the Tribunal that breach of other provisions that do not constitute the LAOP, such as the General Provisions invoked by PEMEX, cannot cause the nullity of the Contract.
201.
Furthermore, the Tribunal does not consider that it can be stated with absolute certainty that the contract to which the general rules make reference for the purposes of determining unit prices is the COPPU, since the works were also performed according to the COPF and what said Rule provides is that the prices can be determined "based on the elements contained in the price analysis already set forth in the contract...". Such elements can be those contained in the COPF and not necessarily in the COPPU. From this perspective, if said rule is analyzed, it is observed that its purpose is that prices established remain related to the prices of the contract underway, whose works are being executed. The foregoing confirms that the price relation can be made to the COPF.
202.
Finally, the Tribunal must observe that Mexican law does not enshrine a general principle by virtue of which the price of a contract might be voided because it is considered to be unfair or unreasonable.
203.
Thus, the Tribunal does not find it admissible, in light of the LAOP, to consider the prices included in Annex C-3 as ineffective.
204.
On the other hand, regarding the relation of Annex C-3 to the Contract, it must be recalled that the COPPU had provided:

"6.3 Procedure for Variations.

After Contractor receives the Owner’s Work Order, it will prepare and present to the Owner, within thirty (30) days after receipt of the Work Order in question, a draft Catalogue of ltems, the Scope of the Items, a Detailed Performance Program and a Physical-Financial Program necessary to carry out the Work under the Work Order in question. The Owner and Contractor will meet to reach agreement:

(i) on the final version of the Catalogue of Items, Scope of the Items, Detailed Performance Program and Physical-Financial Program;

(ii) the unit prices of the items, with the understanding that the calculation and inclusion of the unit prices will be established by the Owner based on the catalogue of unit prices of Petroleos Mexicanos, attached hereto as Annex 1 or, in the absence thereof, they will be determined according to the "General Rules for Contracting and Execution of Public Works and Services"; (Underlined)

205.
In this regard, Annex C-3 states:

"Work concepts and unit prices have been prepared according to general standards and bases for public works contracting and execution."

206.
Likewise, in such Annex it is stated:

"Unit prices analyzed according to rule 3.3.4 from General Standards and Bases for public work contracting and execution, which indicates that whenever the dependency or entity considers that extraordinary works not considered in Project and schedule are required to be carried out, "B" analysis model shall be applied. Such model states the following: "In case neither concepts nor unit prices are included in contract and the dependency or entity considers feasible to establish the new prices based on elements included in the analysis of prices already established in contract, the new ones shall be established with the involvement of Contractor, which shall carry out works according to such prices". In that case, concepts, their specifications and unit prices will be incorporated to contract for all its effects, as per terms from this attachment"

"Unit prices of this attachment are included in Financed Public Work Contract No. PR-SP-035/97 made with Conproca, S.A. de C.V. for ‘Upgrading and expansion program of Refinery "Ing. Héctor R. Lara So sa" in Cadere yta N.L.’. Such prices were submitted during the bid of International Public Call No. PR-SP-0 50996, a warding mentioned contract on November 26, 1997"

207.
From this point of view, it is clear that the parties stated that Annex C-3 was in line with the provisions of the COPPU.
208.
Now then, if it is considered that Annex C-3 is not in line with the provisions of the COPPU, this would only mean that the parties differed from what they had previously provided, which does not mean that Annex C-3 lacks validity.
209.
Additionally, it is pertinent to highlight that in such Annex, it provided:

"WHEN IN UNITS 11, 1 2, 14, 16, 17, 19, 22AND3 1 THE VOLUME OF MAN-HOURS EXCEEDS 15% OF ORIGINAL CONTRACT’S VOLUME, BOTH PARTIES SHALL JOINTLY DETERMINE THE ADJUSTMENTS TO BE MADE TO THESE PRICES AS PER THE NORMS IN FORCE, AS LONG AS THEY DO NOT EXCEED THE UNIT PRICE AGREED FOR UNIT 14".

210.
As can be noted, the parties set a limit to the applicable prices.
211.
Moreover, it is important to point out that Annex C-3 identifies, on pages 21, 22 and 23, the engineering activities including topographical data, site inspection and topographical surveying to which a single rate, specified in Annex C-3 will be applied.
212.
Regarding Annexes C-9 and C-19, their criticism basically refers to the criteria used for defining the prices included therein, which PEMEX considers exaggerated. From this perspective, the Tribunal does not find that the LAOP, or in general, Mexican law includes rules that lead to the exclusion of the agreed prices because they are considered exaggerated.
213.
By virtue of the foregoing, the Tribunal considers that is inadmissible to consider the prices included in the annexes as ineffective, as requested by PEMEX, to the extent that CONPROCA demonstrates that it paid for engineering expenses based on such annexes.

3.2.4 The Possibility of Claiming for Engineering

214.
In PEMEX's briefs, reference was made to the Award on Liability to point out that, according to the latter, CONPROCA cannot claim payment for the engineering. Likewise, PEMEX pointed out that CONPROCA could only charge for the engineering related to correction of Pre-engineering or Basic Engineering mistakes, as well as those additions PEMEX incorporated into the design subsequent to the contract.
215.
In this regard, the Tribunal recalls that in the Award on Liability, it stated:

"It is clear that one thing is to correct the engineering and another one is to develop it. From this point of view, it is clear for the Tribunal that CONPROCA is not entitled to the acknowledgement of those works that are simply a consequence of the development of the engineering based on the bid documents or the information it knows or should have known, according to the contract. For such purpose, it is basic to take the scope of CONPROCA’s proposal into account because what CONPROCA had included in such proposal constitutes its understanding".

"...

"As it can be seen, the Contractor was responsible for developing the engineering, and it in turn is defined for being all the engineering not included in the pre-engineering and basic engineering. As a result, if PEMEX failed to supply the engineering, it should be developed by the Contractor and it could not claim for it." (Underlined)

216.
Likewise, it stated:

"As was indicated, the development of all the pre-engineering or engineering that was not provided by PEMEX corresponded to CONPROCA. Accordingly, CONPROCA is not entitled to claim for all of that incorporating engineering development, that is, for generating all the Basic Engineering for Units 19, 23, 26 and 32.

On the contrary, CONPROCA is entitled to claim that related to correction of Pre-engineering or Basic Engineering mistakes, as well a s those additions incorporated by PEMEX to the design after the contract." (Underlined)

217.
As is gathered from the Award on Liability, it is clear that CONPROCA cannot make a claim for the engineering it had to execute in accordance with the project, based on the information it learned of or it should have known. However, it is evident that when it concerns additional works not included in the scope of the project, CONPROCA is entitled to demand that it be acknowledged for the execution of the respective engineering precisely because the engineering, when referring to additional works, could not be understood to have been included in the project. Likewise, as previously stated in the Award on Quantum, CONPROCA can make a claim for the correction of Pre-engineering or Basic Engineering mistakes.
218.
From this point of view, the Tribunal considers inadmissible the engineering discounts that PEMEX applies to the engineering of all underground obstacles on its document D-CUAN-9, since although CONPROCA did not have to know of the underground obstacles, the engineering to be performed as a consequence of these obstacles is in addition to the scope of the relative works.

3.2.5 Method to Calculate the Value of the Engineering

219.
In its document D-CUAN-9, PEMEX reduced the value of the engineering in several claims made by CONPROCA in order to set as such a percentage of the sum of the amounts for procurement, construction and start up.
220.
In this regard, the Tribunal observes that the quantum has the objective of recognizing the costs which the claimant had incurred due to the claim that has been acknowledged. In this sense, the objective is to achieve the figure that corresponds to the reality, so that in order for it to be applicable, the best method is to take into account the real costs incurred based on the information available at the time when the cost was incurred. If such quantum is available, this must prevail over the other, which estimates costs depending on the percentages considered to be usual.
221.
The foregoing, obviously. if we start from the basis that the cost is really attributable to that party against whom the claim was made and, therefore, it is not attributable to inefficiencies or neglect by the other party.

3.2.6 Claims Favorably Settled in the Third Point of the Award on Liability

3.2.6.1 Claims CRA-001 to CRA-008, CRA-014, CRA-015, CRA-032 and CRA-055 to CRA-071

222.
In its Memorial on Quantum, CONPROCA determined the value of claims CRA-001 to CRA-008, CRA-014, CRA-015, CRA-032 and CRA-055 to CRA-071 in the following manner:
CRA No.SGS Resolution No.Description ClaimAmount(US$)
1 CAD-WOR- 002 The foundation for the new substation to be expanded was interfered by the unknown underground duct bank and fire fighting line. 5,718.60
2 CAD-WOR- 004 Modification and relocation to foundations for 32FA3803/3810 / GA 3807 / GA 3807 R/3810/3810R in Unit 32 were interfered by the unknown underground duct bank. 40,095.72
3 CAD-WOR- 012 Relocation of monitor, fire fighting piping, manholes of drainage from existing facilities and addition of platform. 7,060.05

4 CAD-WOR- 025 Construction of the foundation for the pump was interfered with by the existing underground pipeline and duct bank. 18,078.92
5 CAD-WOR- 028 Modification in location and foundation for LPS-11-003 for interfering with duct bank in Unit 11. 69.76
6 CAD-WOR- 029 Construction of the firefighting line was interfered by the existing underground duct bank. 4,086.87
7 CAD-WOR- 032 Foundation works for compressor were interfered with by an existing underground air line. 4,242.36
8 CAD-WOR- 035 Modification of equipment location, piping and foundation in Unit 11 due to interference with underground duct bank not included in reference information for design. 255,089.94
14 CAD-WOR- 053 The 24" flare line is being revamped per PEMEX's request although it is not in CONPROCA's scope. PEMEX supplied its own materials. Conproca only developed the engineering and construction activities. 40,078.24
15 CAD-WOR- 059 At PEMEX's request damaged reinforcement plates were removed and new ones were installed in the west-east pipe rack in Unit 10. 31,880.99
32 CAD-WOR- 089-05 Change of pump type from piston to diaphragm for catalyst injection package. 94,362.53
55 CAD-WOR-113-01 The foundation of 9-ex interferes with existing drainage and duct bank. 13,828.21
56 CAD-WOR-113-04 Modification to type of foundation from 3F-06 (cyclone structures) due to interference with existing drainage line. 12,770.96
57 CAD-WOR- 113-05 Modification of foundation type and depth from 3F-06 (cyclone structures) due to interference with existing drainage line. 6,731.11
58 CAD-WOR- 113-06 Foundation of JF-05 (cyclone structures) interferes with existing duct. Therefore, foundation type will be changed. 11,686.56
59 CAD-WOR-113-07 Filling material polluted by underground corroded piping water. Replacement of soil with gravel in layer of 30 cm 6,751.24
60 CAD-WOR- 113-08 Design change in valve manhole field provoked by the difference of existing piping and Pemex reference drawings for design. 4,913.89
62 CAD-WOR- 113-14 The location of the manhole was modified for interfering with an existing duct. 109.97
63 CAD-WOR- 113-15 Demolition of existing dike and installation of new one in Unit 19, area TGTU. 4,658.24
64 CAD-WOR-113-16 Modification of pipe rack foundation for interfering with existing duct bank. Therefore, foundation will be changed. 278.68
65 CAD-WOR-113-17 Variation of civil works in Block No. 2. FCN was attached. 1,302.59
66 CAD-WOR- 113-18 Modification of foundation location and type in equipment V-4501/4502/4503 due to interference with existing duct and manhole. 127.82
67 CAD-WOR- 116-01 Piping dismounting. Demolition of foundation from existing equipment 60-C. 10,831.07
68 CAD-WOR- 116-02 Work suspension from October 5 to 12 due to demolition of foundations in existing equipment 51-C, 52-C and 54-J. 63,677.46
69 CAD-WOR-116-05 The path of underground piping line was changed due to existing obstacles and different installation of existing underground piping. 6,397.02
70 CAD-WOR- 116-09 The path of underground piping line was changed due to existing obstacles and different installation of existing underground piping. 2,264.67
71 CAD-WOR- 116-17 Block valves of vacuum residual line were added per PEMEX's request. 2,933.58

223.
Regarding said claims, the following table indicating the values to be deducted from CONPROCA's quantum was attached by PEMEX to its brief dated February 15, 2011:

CRA Controversy on which the Resolution relied upon AMOUNT TO BE DEDUCED FROM CONPROCA'S CLAIM DUE TO DETAIL ENGINEERING
ENGINEERING PERCENTAGE AS TO P/C/C REASONABLE ENGINEERING ENGINEERING AMOUNT TO BE DEDUCED NOTE PAYMENT IN EXCESS
1 CAD-WOR-002 0 0 -9152 1 9152
2 CAD-WOR-004 0 0 -36997,72 1 0
3 CAD-WOR-012 0,16 1129,608 -52362,272 3 52362,272
4 CAD-WOR-025 0 0 -28270,32 1 28270,32
5 CAD-WOR-028 0 0 -33536,36 1 33536,36
6 CAD-WOR-029 0 0 -2494,7 1 2494,7
7 CAD-WOR-032 0 0 -3838 1 0
14 CAD-WOR-053 0,16 1966,5872 -25820,4828 3 0
15 CAD-WOR-059 0.16 1907,7424 -18049,8576 3 0
32 CAD-WOR-089-05 0.16 14790,0992 -12865,6892 3 0
55 CAD-WOR-113-01 0 0 -13049,2 1 0
56 CAD-WOR-113-04 0 0 -11514 1 0
57 CAD-WOR-113-05 0 0 -5798,22 1 0
58 CAD-WOR-113-06 0 0 -11514 1 0
59 CAD-WOR-113-07 0.16 73,1072 -6221,2128 3 0
60 CAD-WOR-113-08 0.16 12,4816 -4823,3984 3 0
62 CAD-WOR-113-14 0 0 -29933,28 1 29933,28
63 CAD-WOR-113-15 0.16 745,3184 -9477,0616 3 9477,0616
64 CAD-WOR-113-16 0 0 -49234,32 1 49234,32
65 CAD-WOR-113-17 0.16 208,4144 -55075,8856 3 55075,8856
66 CAD-WOR-113-18 0 0 -25243,02 1 25243,02
67 CAD-WOR-116-01 0.16 136,3632 -9842,4368 3 0
68 CAD-WOR-116-02 0.16 4155,672 -33548,838 3 0
69 CAD-WOR-116-05 0 0 -6524,6 1 6524,6
70 CAD-WOR-116-09 0 0 -8136,56 1 8136,56
71 CAD-WOR-116-17 0.16 469,3728 -3104,1072 3 3104,1072

224.
Regarding the claims identified with Note 1, the following was stated by PEMEX: "UNDERGROUND OBSTACLES: IT IS CONSIDERED THAT THEIR ADDITIONAL DETAILED ENGINEERING VALUE IS ZERO." Note 2 indicates: "CLAIMS WITH ADDITIONAL DETAILED ENGINEERING CORRECTED UNDER THE ASSUMPTION THAT THE DETAILED ENGINEERING MEANS 16% OF THE SUM OF THE AMOUNTS OF PROCUREMENT, CONSTRUCTION AND COMMISSIONING. Finally, in the claims identified with No. 3, PEMEX stated that they are claims studied by PATHFINDER.
225.
Additionally, CRA-008 was subject to a particular analysis by PEMEX.
226.
On their part, the Tribunal Experts stated (page 16):

"Both PEMEX and CONPROCA agreed on the work volume, and the SGS resolutions for all of these claims were in favor of CONPROCA. The Tribunal ruled that there was no manifest error in SGS’ ruling (Laudo; page 500). Therefore this is now a matter of applying the appropriate unit prices to quantify each claim.

"We reviewed the estimates carried out by PEMEX and CONPROCA. PEMEX lists these claims in its D-Cuan-9 report table which says that the engineering quantum should be zero for claims involving underground obstructions and should be only 16% of the construction cost for the other claims. PFI reviewed CRA-008 in its D-Cuan-5 report of May 2010, but this appears to disregard the SGS resolution that was already upheld by the Tribunal.

"In our opinion, the PEMEX/PFI estimates are unsupported. CONPROCA’s estimates of these claims are reasonable and based on the available unit prices. It is important to note that PEMEX made partial payments on several of these claims. We consider that the following amounts are the value of CONPROCA’s claim for each claim listed below.

CRA CLAIMS WHERE AGREEMENT WAS REACHED ON WORK VOLUME
CONPROCA's Total Claim Amounts
Engineering Construction Paid by Net Amount due
Claim Hours Engineering Cost Cost Total PEMEX CONPROCA
CRA-001 55 $ 9,152.00 $ 5,718.60 $ 14,870.60 $ 9,152.00 $ 5,718.60
CRA-002 514 $ 36,997.72 $ 3,098.00 $ 40,095.72 $ - $ 40,095.72
CRA-003 193 $ 53,491.88 $ 7,060.05 $ 60,551.93 $ 53,491.88 $ 7,060.05
CRA-004 102 $ 28,270.32 $ 18,078.92 $ 46,349.24 $ 28,270.32 $ 13,078.92
CRA-005 121 $ 33,536.36 $ 69.76 $ 33,606.12 $ 33,536.36 $ 69.76
CRA-005 33 $ 2,494.70 $ 4,086.87 $ 6,581.57 $ 2,494.70 $ 4,086.87
CRA-007 50 $ 3,833.00 $ 404.36 $ 4,242.36 $ - $ 4,242.36
CRA-003 902 $ 249,998.32 $ 2,914.93 $ 252,913.25 $ - $ 252,913.25
CRA-014 362 $ 27,787.07 $ 12,291.17 $ 40,078.24 $ - $ 40,078.24
CRA-015 260 $ 19,957.60 $ 11,923.39 $ 31,880.99 $ - $ 31,880.99
CRA-032 23 $ 1,924.41 $ 92,438.12 $ 94,362.53 $ - $ 94,362.53
CRA-055 170 $ 13,049.20 $ 779.01 $ 13,828.21 $ - $ 13,328.21
CRA-055 150 $ 11,514.00 $ 1,256.95 $ 12,770.96 $ - $ 12,770.96
CRA-057 86 $ 6,601.36 $ 932.89 $ 7,534.25 $ - $ 7,534.25
CRA-058 150 $ 11,514.00 $ 172.56 $ 11,686.56 $ - $ 11,586.56
CRA-059 82 $ 6,294.32 $ 456.92 $ 6,751.24 $ - $ 6,751.24
CRA-060 63 $ 4,835.88 $ 78.01 $ 4,913.89 $ - $ 4,913.89
CRA-061 146 $ 40,465.36 $ 1,195.37 $ 41,660.73 $ 40,455.36 $ 1,195.37
CRA-062 108 $ 29,933.28 $ 109.97 $ 30,043.25 $ 29,933.28 $ 109.97
CRA-063 49 $ 10,222.38 $ 4,658.24 $ 14,880.62 $ 10,222.38 $ 4,658.24
CRA-064 236 $ 49,234.32 $ 278.68 $ 49,513.00 $ 49,234.32 $ 278.68
CRA-065 265 $ 55,284.30 $ 1,302.59 $ 56,586.89 $ 55,284.30 $ 1,302.59
CRA-065 121 $ 25,243.02 $ 127.82 $ 25,370.84 $ 25,243.02 $ 127.82
CRA-067 130 $ 9,978.80 $ 852.27 $ 10,831.07 $ - $ 10,831.07
CRA-063 491 $ 37,704.51 $ 25,972.95 $ 63,677.46 $ - $ 63,577.46
CRA-069 85 $ 6,524.60 $ 6,397.02 $ 12,921.62 $ 6,524.60 $ 6,397.02
CRA-070 106 $ 8,135.56 $ 2,264.67 $ 10,401.23 $ 8,136.56 $ 2,264.67
CRA-071 12 $ 3,573.48 $ 2,933.58 $ 6,507.06 $ 3,573.48 $ 2,933.58
Total 5,065 $ 797,557.75 $ 207,853.63 $ 1,005,411.43 $ 355,562.56 $ 649,848.87

Although CONPROCA’s estimates were made based on the volumes agreed during the contract’s execution and the prices were determined accordingly, and considering the statements made by the Tribunal Experts, the Tribunal accepts the relevant quantum. However, it is to be noted that, regarding claim CRA-057, the Tribunal Experts indicate a value of $7,534.25, while CONPROCA quantified its claim at $6,731.11. In its brief on the expert's technical report submitted on November 3, 2010, CONPROCA corrects the value established by the experts stating "costs amended per summaries in Appendix 26 to Mr. D.G. Kang’s Witness Statement". Since this is the value quantified by and stated by CONPROCA, and that such value is lower than the value estimated by the experts, this latter sum of $6,731.11 will be acknowledged by the Tribunal. For the rest, the Tribunal’s majority does not find that the engineering cost calculated by the experts can be excluded, since it exceeds the construction cost, since it exceeds the construction cost, as it is obvious that, in many cases, executing adequate engineering may be more expensive than applying the solution developed. Thus, for example, it is clear that developing the engineering of a high technology product can be more expensive than building the product. Finally, in this case, the engineering cost depends on the rates agreed by the parties9.

227.
Nevertheless, the Tribunal considers it admissible to examine the additional considerations made by PEMEX with respect to CRA-008.
228.
Claim CRA-008 refers to the "Modification of equipment location, piping and foundation in Unit 11 due to interference with underground duct bank not included in reference information for design".
229.
Such claim was quantified by CONPROCA at US$ 255,089.94.
230.
In the cards relative to such claim attached by PEMEX to its brief dated February 15, 2011, this claim was quantified by PEMEX at US$4,155,17.
231.
For this purpose PEMEX states that CONPROCA (i) used incorrect values to calculate water requirements for compaction; (ii) considered water carry over, while PEMEX supplied water for compaction within the Refinery’s borders; (iii) incorrectly considered hydrostatic and pneumatic testing on piping, an item which was included in the COPF and its cost is not affected by the variation in installation; and (iv) incorrectly applied item 656,040 "Manual cleaning of metal surfaces" as this cleaning work was not performed, since the piping used is new and does not require it. Likewise, it stated that CONPROCA included the purchase of soil for compaction, while usually for this type of works the soil produced from cuts in other areas is used.
232.
Regarding engineering, which is the item where more differences arise, PEMEX stated that: CONPROCA incorrectly included additional detail engineering costs for underground obstacles, while Bidders had learned there were underground obstacles during visits to the works, especially because of the questions and answers; Bidders had the chance to conduct several visits to the works, where it was evident that there were underground installations, and CONPROCA received the underground installation plans at the beginning of the Project. However, CONPROCA performed Detail Engineering in Korea, without the support of data from the Works Site. Additionally, PEMEX stated that CONPROCA applied an unreasonable Extraordinary Unit Price per Engineering Man-Hour of US$ 277.16 relative to Annex "C-3", when a true average price in the market, analyzed by Pathfinder, is US$ 56.00. Likewise, it stated that the correct procedure to perform the Detail Engineering of foundations consisted o reviewing the underground obstacle drawings delivered by PEMEX before starting the engineering, then, conducting a survey for field data to detect underground obstacles and then to perform the Engineering only once, therefore, the payment claimed for Additional Engineering is not applicable.
233.
Likewise, it made reference to Pathfinder’s report (Annex D-Cuan-5, CRA-008, points 4 and 5, p. 15), where it makes considerations such as: the isometric drawings were reviewed for design more than once, stating that the design was not completed or finished and that the changes in piping s were for other reasons; isometric reviews included several types of changes that were not related to or were not part of the relocation of foundations or the change of the line route; reviews included, in some cases, additional valves, obviously not due to the foundation's relocation; reviews included, in some cases, changes in the line's size, obviously not due to the foundation's relocation and reviews included additional accessories as well as elbows for changes of direction, again, not associated with the equipment foundation's relocation.
234.
The following is considered admissible by the Tribunal for its ruling:
235.
Firstly, in SGS resolution dated February 22, 200110 (CAD-WOR-035) in which such independent expert issued its opinion on this work order, and that, according to the Award on Liability was invalidated due to manifest error, the Work Order requested by CONPROCA was considered admissible.
236.
From this point of view, it is observed that PEMEX’s arguments, which are basically aimed at sustaining that the unforeseen obstacles should have been foreseen by CONPROCA are inadmissible, since they imply ignorance of SGS' decision, in which no manifest error was found by the Tribunal.
237.
Likewise, to the extent that SGS acknowledged that the works referred in this claim are additional, it is clear that within the relative costs, CONPROCA is entitled to be paid for t the relative engineering.
238.
On the other hand, regarding the prices of Annex C-3, PEMEX's arguments are considered inadmissible by the Tribunal, to the extent that, as previously stated, the prices agreed to in such annex are binding on the parties.
239.
In addition to the foregoing, the Tribunal Experts did not consider the comments made by PEMEX to have grounds.
240.
Thus, the Tribunal will admit the considerations made by the Tribunal Experts in the quantum stage, and will acknowledge an amount of US$ 252,913.25.

3.2.6.2 CONPROCA’s Claims CRA-16 to CRA-172 not Included in the Previous Category

241.
The following quantum was presented by CONPROCA for these claims:
16 CAD-WOR- 060 The foundation of the steel structure interfered with existing underground piping and electric duct bank. Therefore, the location and elevation of the structure were changed. 170,112.50
17 CAD-WOR- 068-01 Modification of class and location of truss "OB-B5-OB-B6" foundation due to interference with existing underground piping and duct bank of Unit 27 B. 4,162.05
18 CAD-WOR- 070-02 During construction, CONPROCA found the existence of an unknown duct bank. Therefore, the foundation was changed. 48,764.09
19 CAD-WOR-072-01 The new trench for underground piping interfered with the existing underground piping and electric duct bank. Therefore, the dimension was changed. 62,035.14
20 CAD-WOR- 074 The foundation and steel structure were modified due to interferences with existing underground piping. 4,424.34
21 CAD-WOR-075-01D The foundation and steel structure were modified due to interferences with existing underground piping and existing electric duct bank. 34,934.83

22 CAD-WOR- 075-02A The foundation of the steel structure and piping sleeper interfered with existing underground piping. Therefore, the type and dimensions of the foundation and steel structure were changed. 254,003.14
23 CAD-WOR-075-02D The foundation of the steel structure and piping sleeper interfered with existing underground piping. Therefore, the type and dimensions of the foundation and steel structure were changed. 7,039.53
24 CAD-WOR-078-01 Change of foundation for pipe rack structure due to interference with existing structure. 2,134.61
25 CAD-WOR- 078-03 Pipe rack foundation interferes with existing underground piping and duct bank. OB-06 foundation type was changed (Refer to civil drawing No. CAD-ROI-BL3- CV-109). 23,566.98
26 CAD-WOR- 078-04A The foundation of the aerial metallic structure for piping crossing interfered with the existing underground electric duct bank. Therefore, the foundation type and dimensions were changed (OB-D7). 49,558.16
27 CAD-WOR-078-04B The foundation of the aerial metallic structure for piping crossing interfered with the existing underground electric duct. Therefore, the foundation type and dimensions were changed (OB-D7). 89,415.39
28 CAD-WOR- 078-06A Due to interference between the existing underground piping and new foundation, the members of structure manufactured in workshop were changed (TRUSS). 6,989.89
29 CAD-WOR- 078-06B Due to interference between the existing underground piping and new foundation, the members of structure manufactured in workshop were changed (TRUSS). 2,638.25
30 CAD-WOR-BL#1-089-02 Change of specifications for sampling system. 83,460.43
31 CAD-WOR- 089-04 Change of seal piping plan from API II to API II+52. 30,289.84
35 CAD-WOR- BL#2- 089-09 Revision of heating and transfer system for vacuum distillation units in Units 11 and 12. 857,226.81
36 CAD-WOR- 089-10 Design change of heat exchangers in Unit No. 11. 1,361,808.24
37 CAD-WOR- 090-01 Design change of pumps, Unit No. 11. 532,495.97
38 CAD-WOR- 090-02 Design change of heat exchangers in Unit No. 11. 855,114.77
39 CAD-WOR- 090-03 Complement to piping system for Units No. 10, No. 11 and No. 12. 1,201,829.68
40 CAD-WOR- 090-04 Replacement of Pumps, Unit 12. 578,203.69
41 CAD-WOR- 090-05 Supply and replacement of equipment in Units No. 10, 11, 12, 13 and 19 in accordance with technical reasons and instructions from Design Bases (ITB) and the work contract. 1,109,285.60
42 CAD-WOR- 092-01 Installation of new humid gas compressor, Unit No. 10. 1,962,213.32
43 CAD-WOR- BL#1- 092-03 Installation of continuous supply system of lime dosing to KOH solution (potassium) regenerated in hydrogen fluoride (HF) alkylation process of Unit No. 4. 216,350.99
44 CAD-WOR- 092-05 Addition to rain recovery system. 875,168.87
45 CAD-WOR- 092-06 Additional satellite room for new boiler control. 240,463.67
46 CAD-WOR- 092-07 Addition of filters to lateral stream, Unit No. 26.
47 CAD-WOR- 092-08 Addition of demineralized water transfer pumps (25-GA-9207 A/R), Unit No. 26. 196,297.40
48 CAD-WOR- BL#3- 092-13 Installation of recovery system of low pressure condensate, Unit No. 26. 205,784.09
49 CAD-WOR- 093-01 Change of capacity of oily condensate system, Unit No. 26. 498,836.40
50 CAD-WOR-106-04 Existence of unknown obstacle (underground duct bank). 163,321.15
51 CAD-WOR- 106-05A Trench modification due to interference with unknown underground manhole. Logbook No. 424 (Book No. 3.1.5 September 11th, 1999). 16,147.62
52 CAD-WOR- 106-07A Road crossing trench modification due to interference with unknown obstacles, electric duct and piping. 30,166.51
53 CAD-WOR- 106-07B Modification to road crossing trench due to interference with unknown obstacles, electric duct and piping. 262,749.56
54 CAD-WOR- BL#3- 107-01 Increase of Tie-in Points. 2,450,941.93
61 CAD-WOR- 113-11 Foundation of 162-P/PA and 163-P/PA interferes with existing duct. Therefore, foundation will be changed. 1,195.37
73 CAD-WOR- 122-03 Material from Block #1 and TV-536/537 is replaced due to bad conditions of soil in Unit 27. 1,664,274.75
74 CAD-WOR-122-04 Filling material from Block #1 was replaced due to pollution by leakage in existing drainage lines in Unit 27. 768,121.98
75 CAD-WOR-122-05 Remove obstacles around work area in the Refinery. (site access difficulty) Unit 27. 1,087,920.19
76 CAD-WOR-124-02 The new line interferes with the existing one in interconnection. Therefore, foundations had to be relocated. 156,882.00
77 CAD-WOR- 124-03 The new line interferes with the existing one in interconnection. Therefore, foundations had to be relocated. 1,456.36
78 CAD-WOR- 124-07 Due to the existence of obstacles, two elements from the steel structure were modified. 1,154.87
79 CAD-WOR- 125-01A Modification of foundation and structure due to interference with existing underground piping. 12,643.01
80 CAD-WOR- 125-02A Modification of piping sleeper type and location due to interference with existing underground piping. 127,968.78
81 CAD-WOR- 125-07A During construction, Conproca found an unknown well and duct bank. Therefore, foundation form was changed. 173,807.09
82 CAD-WOR- 125-07B During construction, Conproca found an unknown well and duct bank. Therefore, foundation form was changed. 289.56
83 CAD-WOR- 125-09 Foundation of the steel structure interfered with existing underground piping. Therefore, foundation location and type were changed. 235,730.54
84 CAD-WOR- 125-10 Modification of road crossing trench due to interference with existing underground piping. 41,539.80
85 CAD-WOR-125-12 The dimension of the trench for underground piping was modified due to interference with existing underground piping. 93,542.49
86 CAD-WOR-125-13 Modification of type and location of metallic structure foundation for piping crossing due to interference with underground electric facilities. 1,434.81
87 CAD-WOR- 125-14 Due to soil difference compared with existing information, T.O.G. and T.O.B. elevation was changed. 32,428.97
88 CAD-WOR-125-15 Modification of steel structure foundation for coke manual system interfered with existing underground piping. 41,155.51
89 CAD-WOR-125-17 Foundation of piping frame interfered with existing underground piping. Therefore, foundation type was changed. 1,206.29
90 CAD-WOR- 125-18A Foundation interfered with existing piping. Therefore, foundation type was changed. 1,544.73
91 CAD-WOR- 125-18B During construction, CONPROCA found the existence of an unknown duct bank. Therefore, the foundation was changed. 16,531.40
92 CAD-WOR- 125-18E Foundation interfered with existing underground piping. Therefore, foundation type was changed. 418.47
93 CAD-WOR-125-19 Modification of foundation type and dimensions for piping frames for interfering with existing underground piping. 4,151.99
94 CAD-WOR- 125-20 Modification of foundation type and dimensions for piping frames for interfering with existing underground piping. 564.70
95 CAD-WOR-125-22 Piping trench foundation interfered with existing underground piping. Therefore, foundation type and location were changed. 1,135.27
96 CAD-WOR-125-24 Foundation of metallic structure for aerial piping crossing interfered with underground electric duct bank. Therefore, foundation type and dimensions were changed. 319.84
97 CAD-WOR- 125-25A Concrete frames for piping interfered with existing underground piping. The design in the upper part was modified without being poured. 1,520.97
98 CAD-WOR- 125-25B Concrete frames for piping interfered with existing underground piping. The design in the upper part was modified without being poured. 1,248.78
99 CAD-WOR- 125-26 Foundation of metallic structure for aerial piping crossing interfered with electric duct bank. Therefore, foundation type was changed. 1,361.92
100 CAD-WOR- 125-27 Foundation and piping frames interfered with existing underground electric duct bank and trench. Therefore, dimension type was changed. 32,048.26
101 CAD-WOR- 125-29 Foundation of steel structure for piping crossing interfered with existing underground electric duct bank. Therefore, foundation’s depth was changed. 78,509.45
102 CAD-WOR- 125-30A New foundation of steel structure for piping crossing interfered with an existing underground electric duct. Therefore, foundation type was changed. 1,538.22
103 CAD-WOR- 125-30B New foundation of steel structure for piping crossing interfered with an existing underground electric duct. Therefore, foundation type was changed. 10,724.52
104 CAD-WOR- 125-37 Metallic elements shown in drawings did not exist. Therefore, Conproca had to supply them. 1,190.77
105 CAD-WOR- 127-02A Pipe rack structure was modified according to ROI No. CAD-ROI-BL3-CV-034. 4,028.74
106 CAD-WOR- 127-03B Due to difference between Pemex reference drawings for design, piping sleeper location and type were modified in Unit 27 A. 4,326.89
107 CAD-WOR- 127-04A Modification of piping sleepers due to differences between existing drawings and site conditions. 43,183.99
108 CAD-WOR-128-01 CONPROCA changed piping design in field due to interference of an obstacle not included in reference drawings. 32,611.91
109 CAD-WOR- 128-03 CONPROCA changed piping design in field piping due to an obstacle (23-D002 Sleeper). 222,472.04
110 CAD-WOR- 128-04A CONPROCA had to modify the piping design in field due to interference with existing obstacles (B7-B005 piping sleeper) in Unit 27A. 78,396.73
111 CAD-WOR- 128-04C Due to the different elevation level in comparison with the existing information, the piping's trajectory was modified. 8,573.84
112 CAD-WOR- 128-05A Change of design in field due to an existing unexpected obstacle (B/BO11 piping sleeper) in Unit 27A. 150,841.32
113 CAD-WOR- 128-09A CONPROCA changed piping design in field due to interference with an existing unexpected obstacle (D9-D1117 Sleeper). 121,270.53
114 CAD-WOR-128-17 CONPROCA changed piping design in field due to interference with an existing unexpected obstacle (BC-011 culvert manhole). 58,223.76
115 CAD-WOR-128-18 Per PEMEX's request, CONPROCA changed piping design (including CO-P- 002, CO-P003), CO-P-04, CO-P-005, CO-P006). 68,378.00
116 CAD-WOR- 129-16A Work suspension in drainage piping excavation due to existing piping not included in Pemex's reference drawings. Logbook No. 258 (Book No. 3.1.5, August 17, 1999). 13,683.36
120 CAD-WOR- 163-01A Foundation of the steel structure interferes with underground existing piping in Unit 27-A. 279.46
121 CAD-WOR- 163-01B Foundation of the steel structure interferes with underground existing piping in Unit 27-A. 1,341.62
122 CAD-WOR- 163-02 Obstacle in new box culvert "BC-A8" with underground existing piping in Unit 27. 43,011.68
123 CAD-WOR- 167 Additional modernization works to fuel gas surge tank. 62,820.38
125 CAD-WOR- 185 Merox LPG and Gasoline Units. 971,224.88
126 CAD-WOR- 190 The depth and location of manholes in the whole area of the Refinery has been changed due to the existence of unknown obstacles such as piping and duct banks. 958,874.57
127 CAD-WOR- 591 Tank of additional foam for Foaming System from TV-17 and TV-30. Block No. 3, Unit 27. 479,979.18

242.
The Tribunal observes that CONPROCA did not quantify claims CRA-009 to CRA-013, CRA-149, CRA-184, CRA-185 and CRA-188. Thus, the relative acknowledgement is not admissible11.
243.
Regarding the majority of the claims referred to, which were quantified, PEMEX made comments discounting certain amounts for engineering.
244.
On such claims, an overall reference was made by the Tribunal Experts in the quantum stage, except for CRA-018, CRA-030, CRA-031, CRA-035 to CRA-044, CRA-046, CRA-049, CRA-054, CRA-073, CRA-075, CRA-125 and CRA-127, for which particular considerations were made.
245.
The Tribunal Experts pointed out:

"Of the 70 claims included in this group, work volumes were agreed upon and signed by both parties, including additional engineering hours, for 66 of the claims. We consider the engineering hours for these claims to be agreed upon and do not consider them to require any further review. The remaining four work orders, CRA-018, CRA-049, CRA-111 and CRA-127, were analyzed in more detail."

246.
To this extent, the Tribunal considers it admissible to accept the quanta of the Tribunal Experts, with the comments to be made hereinafter, to the extent that they correspond to the amounts agreed during the project's execution. On the other hand, the deduction of the value of the engineering proposed by PEMEX is considered inadmissible by the Tribunal since, as previously stated, the additional works incur payment for the engineering.
247.
However, the Tribunal finds that in claim CRA-120, it was quantified by CONPROCA at $279.46. Nevertheless, in their table12, it was quantified by The Tribunal Experts at (170.54), that is, a negative value, without specifying the reasons for said reduction. In addition to the foregoing, in its brief on the technical expert report submitted on November 3, 2010, CONPROCA corrects the experts' figures stating, "Correction of a typographical error in CONPROCA's summary spreadsheet submitted to the Tribunal after August 2010 Hearing". Since PEMEX starts from the same figures as CONPROCA, although it considers that the engineering value must be discounted, the figure calculated by CONPROCA's experts will be admitted by the Tribunal.
248.
Likewise, in claim CRA-023, a value of US$ 7,433.61 is mentioned by the Tribunal Experts, while CONPROCA had quantified its claim at US$ 7,039.53. Similarly, in claim CRA-026, this claim is quantified by the Tribunal Experts at US$ 52,003.37, while it was quantified by CONPROCA at US$ 49,558.16. In both cases, in its brief on the technical expert report submitted on November 3, 2010, CONPROCA corrects the value established by the Tribunal experts indicating "costs amended per summaries in Appendix 26 to Mr. D.G. Kang's Witness Statement...". Since the value determined by CONPROCA is lower, and in its explanation, the Tribunal will take the value set by CONPROCA.
249.
Also, regarding claim CRA-100, it is quantified by the Tribunal Experts at US$ 32,658.88, while it is quantified by CONPROCA at US$ 32,048.26. In this case, in its brief on the technical expert report submitted on November 3, 2010, CONPROCA makes an adjustment to the value calculated by the Tribunal Experts stating: "Correction of a typographical error in CONPROCA's summary spreadsheet submitted to the Tribunal after August 2010 Hearing". Likewise, regarding claim CRA-106, its value is quantified by the Tribunal Experts at $4,326.89. However, it is quantified by CONPROCA at $15,531.14 and, in its brief dated November 3, 2010 with comments on the Tribunal Experts' report, CONPROCA corrects the value they established indicating "Correction of a typographical error in CONPROCA's summary spreadsheet submitted to the Tribunal after August 2010 Hearing". Additionally, the Tribunal notes that in PEMEX's spreadsheet on CONPROCA's claims, the same value is indicated as in the later, save if PEMEX carries out a reduction in the value of the engineering. In this context, the Tribunal concludes that there is actually an error in the sum indicated in the Tribunal expert's report, therefore it will take the corrected value.
250.
Additionally, in claims CRA-092 and CRA-093, the Tribunal observes that these claims are quantified by the Tribunal Experts at 474.47 and 4,061.99, without additional specifications. However, they had been quantified by CONPROCA at 418.47 and 4,151.99. Since the experts did not provide any additional specification in that regard, and, on the contrary, they consider that this subject does not require any additional review against that agreed by the parties, and that CONPROCA makes reference to the same amounts as PEMEX, before stating that the value of the engineering value must be deducted, the Tribunal considers that it must admit CONPROCA's quantum.
251.
Finally, regarding claim CRA-123, a value of $125,640.76 is established by the experts in the table on page 15 of their Report, while such claim had been quantified by CONPROCA at $62,820.3813, and later, in their report they support the value estimated by CONPROCA. Therefore, the latter value will be taken. It is worth clarifying that, regarding claim CRA-123, there is also a claim for instrumentation loops on which the Tribunal will give its opinion later.
252.
Thus, the quantum of these claims is the following:
CRA-016 CAD-WOR- 060 The foundation of the steel structure interfered with existing underground piping and electric duct bank. Therefore, the location and elevation of the structure were changed. 170,112.50
CRA-017 CAD-WOR- 068-01 Modification of class and location of truss "OB-B5-OB-B6" foundation due to interference with existing underground piping and duct bank of Unit 27 B. 4,162.05
CRA-019 CAD-WOR-072-01 The new trench for underground piping interfered with the existing underground piping and electric duct bank. Therefore, the dimension was changed. 62,035.14
CRA-020 CAD-WOR- 074 The foundation and steel structure were modified due to interferences with existing underground piping. 4,424.34
CRA-021 CAD-WOR-075-01D The foundation and steel structure were modified due to interferences with existing underground piping and existing electric duct bank. 34,934.83
CRA-022 CAD-WOR- 075-02A The foundation of the steel structure and piping sleeper interfered with existing underground piping. Therefore, the type and dimensions of the foundation and steel structure were changed. 254,003.14
CRA-023 CAD-WOR-075-02D The foundation of the steel structure and piping sleeper interfered with existing underground piping. Therefore, the type and dimensions of the foundation and steel structure were changed. 7,039.53

CRA-024 CAD-WOR-078-01 Change of foundation for pipe rack structure due to interference with existing structure. 2,134.61
CRA-025 CAD-WOR- 078-03 Pipe rack foundation interferes with existing underground piping and duct bank. OB-06 foundation type was changed (Refer to civil drawing No. CAD-ROI-BL3- CV-109). 23,566.98
CRA-026 CAD-WOR- 078-04A The foundation of the aerial metallic structure for piping crossing interfered with the existing underground electric duct bank. Therefore, the foundation type and dimensions were changed (OB-D7). 49,558.16
CRA-027 CAD-WOR-078-04B The foundation of the aerial metallic structure for piping crossing interfered with the existing underground electric duct. Therefore, the foundation type and dimensions were changed (OB-D7). 89,415.39
CRA-028 CAD-WOR- 078-06A Due to interference between the existing underground piping and new foundation, the members of structure manufactured in workshop were changed (TRUSS). 6,989.89
CRA-029 CAD-WOR- 078-06B Due to interference between the existing underground piping and new foundation, the members of structure manufactured in workshop were changed (TRUSS). 2,638.25
CRA-045 CAD-WOR- 092-06 Additional satellite room for new boiler control. 240,463.67
CRA-047 CAD-WOR- 092-08 Addition of demineralized water transfer pumps (25-GA-9207 A/R), Unit No. 26. 196,297.40
CRA-048 CAD-WOR- BL#3- 092-13 Installation of recovery system of low pressure condensate, Unit No. 26. 205,784.09
CRA-050 CAD-WOR- 106-04 Existence of unknown obstacle (underground duct bank). 163,321.15
CRA-051 CAD-WOR- 106-05A Trench modification due to interference with unknown underground manhole. Logbook No. 424 (Book No. 3.1.5 September 11th, 1999). 16,147.62
CRA-052 CAD-WOR- 106-07A Road crossing trench modification due to interference with unknown obstacles, electric duct and piping. 30,166.51
CRA-053 CAD-WOR- 106-07B Modification to road crossing trench due to interference with unknown obstacles, electric duct and piping. 262,749.56
CRA-076 CAD-WOR-124-02 The new line interferes with the existing one in interconnection. Therefore, foundations had to be relocated. 156,882.00
CRA-077 CAD-WOR- 124-03 The new line interferes with the existing one in interconnection. Therefore, foundations had to be relocated. 1,456.36
CRA-078 CAD-WOR- 124-07 Due to the existence of obstacles, two elements from the steel structure were modified. 1,154.87
CRA-079 CAD-WOR- 125-01A Modification of foundation and structure due to interference with existing underground piping. 12,643.01
CRA-080 CAD-WOR- 125-02A Modification of piping sleeper type and location due to interference with existing underground piping. 127,968.78
CRA-081 CAD-WOR- 125-07A During construction, Conproca found an unknown well and duct bank. Therefore, foundation form was changed. 173,807.09
CRA-082 CAD-WOR- 125-07B During construction, Conproca found an unknown well and duct bank. Therefore, foundation form was changed. 289.56
CRA-083 CAD-WOR- 125-09 Foundation of the steel structure interfered with existing underground piping. Therefore, foundation location and type were changed. 235,730.54
CRA-084 CAD-WOR- 125-10 Modification of road crossing trench due to interference with existing underground piping. 41,539.80
CRA-085 CAD-WOR-125-12 The dimension of the trench for underground piping was modified due to interference with existing underground piping. 93,542.49
CRA-086 CAD-WOR- 125-13 Modification of type and location of metallic structure foundation for piping crossing due to interference with underground electric facilities. 1,434.81
CRA-087 CAD-WOR- 125-14 Due to soil difference compared with existing information, T.O.G. and T.O.B. elevation was changed. 32,428.97
CRA-088 CAD-WOR-125-15 Modification of steel structure foundation for coke manual system interfered with existing underground piping. 41,155.51
CRA-089 CAD-WOR- 125-17 Foundation of piping frame interfered with existing underground piping. Therefore, foundation type was changed. 1,206.29
CRA-090 CAD-WOR- 125-18A Foundation interfered with existing piping. Therefore, foundation type was changed. 1,544.73
CRA-091 CAD-WOR- 125-18B During construction, CONPROCA found the existence of an unknown duct bank. Therefore, the foundation was changed. 16,531.40
CRA-092 CAD-WOR- 125-18E Foundation interfered with existing underground piping. Therefore, foundation type was changed. 418.47
CRA-093 CAD-WOR-125-19 Modification of foundation type and dimensions for piping frames for interfering with existing underground piping. 4,151.99
CRA-094 CAD-WOR- 125-20 Modification of foundation type and dimensions for piping frames for interfering with existing underground piping. 564.70
CRA-095 CAD-WOR- 125-22 Piping trench foundation interfered with existing underground piping. Therefore, foundation type and location were changed. 1,135.27
CRA-096 CAD-WOR-125-24 Foundation of metallic structure for aerial piping crossing interfered with underground electric duct bank. Therefore, foundation type and dimensions were changed. 319.84
CRA-097 CAD-WOR- 125-25A Concrete frames for piping interfered with existing underground piping. The design in the upper part was modified without being poured. 1,520.97
CRA-098 CAD-WOR- 125-25B Concrete frames for piping interfered with existing underground piping. The design in the upper part was modified without being poured. 1,248.78
CRA-099 CAD-WOR- 125-26 Foundation of metallic structure for aerial piping crossing interfered with electric duct bank. Therefore, foundation type was changed. 1,361.92
CRA-100 CAD-WOR- 125-27 Foundation and piping frames interfered with existing underground electric duct bank and trench. Therefore, dimension type was changed. 32,048.26
CRA-101 CAD-WOR- 125-29 Foundation of steel structure for piping crossing interfered with existing underground electric duct bank. Therefore, foundation’s depth was changed. 78,509.45
CRA-102 CAD-WOR- 125-30A New foundation of steel structure for piping crossing interfered with an existing underground electric duct. Therefore, foundation type was changed. 1,538.22
CRA-103 CAD-WOR- 125-30B New foundation of steel structure for piping crossing interfered with an existing underground electric duct. Therefore, foundation type was changed. 10,724.52
CRA-104 CAD-WOR- 125-37 Metallic elements shown in drawings did not exist. Therefore, Conproca had to supply them. 1,190.77
CRA-105 CAD-WOR- 127-02A Pipe rack structure was modified according to ROI No. CAD-ROI-BL3-CV-034. 4,028.74
CRA-106 CAD-WOR- 127-03B Due to difference between Pemex reference drawings for design, piping sleeper location and type were modified in Unit 27 A. 15,531.14
CRA-107 CAD-WOR- 127-04A Modification of piping sleepers due to differences between existing drawings and site conditions. 43,183.99
CRA-108 CAD-WOR-128-01 CONPROCA changed piping design in field due to interference of an obstacle not included in reference drawings. 32,611.91
CRA-109 CAD-WOR- 128-03 CONPROCA changed piping design in field piping due to an obstacle (23-D002 Sleeper). 222,472.04
CRA-110 CAD-WOR- 128-04A CONPROCA had to modify the piping design in field due to interference with existing obstacles (B7-B005 piping sleeper) in Unit 27A. 78,396.73
CRA-111 CAD-WOR- 128-04C Due to the different elevation level in comparison with the existing information, the piping's trajectory was modified. 8,573.84
CRA-112 CAD-WOR- 128-05A Change of design in field due to an existing unexpected obstacle (B/BO11 piping sleeper) in Unit 27A. 150,841.32
CRA-113 CAD-WOR- 128-09A CONPROCA changed piping design in field due to interference with an existing unexpected obstacle (D9-D1117 Sleeper). 121,270.53
CRA-114 CAD-WOR- 128-17 CONPROCA changed piping design in field due to interference with an existing unexpected obstacle (BC-011 culvert manhole). 58,223.76
CRA-115 CAD-WOR-128-18 Per PEMEX's request, CONPROCA changed piping design (including CO-P- 002, CO-P003), CO-P-04, CO-P-005, CO-P006). 68,378.00
CRA-116 CAD-WOR- 129-16A Work suspension in drainage piping excavation due to existing piping not included in Pemex's reference drawings. Logbook No. 258 (Book No. 3.1.5, August 17, 1999). 13,683.45
CRA-120 CAD-WOR- 163-01A Foundation of the steel structure interferes with underground existing piping in Unit 27-A. 279.46
CRA-121 CAD-WOR- 163-01B Foundation of the steel structure interferes with underground existing piping in Unit 27-A. 1,341.62
CRA-122 CAD-WOR- 163-02 Obstacle in new box culvert "BC-A8" with underground existing piping in Unit 27. 43,011.68
CRA-123 CAD-WOR- 167 Additional modernization works to fuel gas surge tank. 62,820.38
CRA-126 CAD-WOR- 190 The depth and location of manholes in the whole area of the Refinery has been changed due to the existence of unknown obstacles such as piping and duct banks. 958,874.57

253.
In regard to other PEMEX claims or the making of specific comments by the Tribunal Experts, the Tribunal proceeds to analyze them.

3.2.6.3 CRA-018. Duri ng construction, CONPROCA fo und the existence of an unknown duct bank. Therefore, the foundation was changed.

254.
This claim was quantified by CONPROCA at US$ 48,764.09.
255.
This claim was quantified by PEMEX at US$ 28,011,50, which is the result of subtracting the engineering value from CONPROCA's quantum.
256.
The following was stated by the Tribunal Experts14:

"CRA-018 - CONPROCA claimed 185 hours for site survey and drawing revisions for a d ike foundation due to underground obstacles. No new drawings were required; all of the drawings only required revisions. Revisions due to an underground obstacle to an above ground piping plan drawing should require less than the 20 hours claimed by CONPRO CA. We also consider 10 hours per isometric drawing revision to be higher than what should be required. After analyzing each task, we estimate 102 hours is sufficient for the surveying and drawing revisions, bringing the total additional engineering hours for this claim from 213 to 130. The amount due CONPROCA is $40,677.40."

257.
The Tribunal finds that the engineering value must be acknowledged to CONPROCA, and the comments made by the Tribunal Experts in the quantum stage on CONPROCA's estimates are considered grounded. Thus, it concludes that the adequate amount is US$ 40,677.40.

3.2.6.4 CRA-030: Change of Specifications for Sampling System

258.
Such claim was quantified by CONPROCA at US$ 83,949.7415.
259.
This claim was quantified by PEMEX at: US$ 57,716.29.
260.
In the spreadsheet attached to its brief dated February 15, 2011, the value of this claim was determined by PEMEX by subtracting the engineering value in order to adjust it to a 16% percentage.
261.
On its part, CONPROCA based itself on the estimate by its expert B&OB, which was accepted by the Tribunal Experts.
262.
In their Report the Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We consider that this quantification is reasonable and based on the actual work performed. Engineering cost for this claim is estimated at $33,772.50 (570 hours). Procurement and construction cost is $50,177.24. The value of CONPROCA’s claim is $83,949.74."

263.
The judgment of the Tribunal Experts is considered reasonable by the Tribunal, since it is based on the work executed. Therefore, it will acknowledge the amount of $83,949.74 to CONPROCA.

3.2.6.5 CRA-031: Change of Seal Piping Plan

264.
This claim was quantified by CONPROCA at US$ 30,289.84.
265.
This claim was quantified by PEMEX at: US$ 26,401.07, according to the spreadsheet it attached to its brief dated February 15, 2011.
266.
The Tribunal Experts stated:

"In our opinion, B&OB’s methodology for establishing engineering costs is more reasonable than PEMEX’s approach.

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We consider that this quantification is reasonable and based on the actual work performed. Engineering cost for this claim is estimated at $7,530.30 (90 hours). Procurement and construction cost is $22,75 9.54. We conclude that the value of CONPROCA’s claim is $30,289.84."

267.
The Tribunal Experts' appraisal is considered reasonable by the Tribunal, since it is based on the work actually executed. Therefore, the Tribunal considers that the value to be acknowledged is US$ 30,289.84.

3.2.6.6 CRA-035: Revision of Heating and Transfer System for Vacuum Distillation Units in Units 11 and 12.

268.
This claim was quantified by CONPROCA at US$ 857,226.81.
269.
Such quantum was adjusted by PEMEX taking into account a 16% engineering cost.
270.
The Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We consider that this quantification is reasonable and based on the actual work performed. Engineering cost for this claim is estimated at $63,232.84 (221 hours). Procurement and construction cost is $793,9 93.97. We conclude that value of CONPROCA’s claim is $857,226.81."

271.
The Tribunal Experts' appraisal is considered reasonable by the Tribunal, since it is based on the work actually executed and on the engineering cost according to the matters agreed. Therefore, the latter considers that the value that must be acknowledged is US$ 857,226.81.

3.2.6.7 CRA-036: Additional Works related to Basic Engineering change of Heat Exchangers in Unit No. 11.

272.
This claim was quantified by CONPROCA at US$ 1,361,808.24.
273.
Such quantum was adjusted by PEMEX taking into account a 16% engineering cost.
274.
The Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We made several adjustments to their quantification (see tables below) to arrive at our estimate of cost for this claim. Since this was a fairly minor change that was caught early (February 19 98) in the detailed design stage of the project, we consider that much of the engineering hours estimated by B&OB should reasonably be lower. For example, they estimate 130 hours to revise foundation drawings and calculations. These Engineering activities were likely not underway when the change was discovered, so no additional engineering work would be required because the original calculations and drawings were part of the COPF.

"We also adjusted the procurement costs related to sea freight, inland transportation and third party inspection costs. In this claim, shipping costs would only increase slightly for the larger exchangers versus the smaller exchangers that were part of the COPF. We lowered the percentages used in the B&OB quant um to arrive at what we consider to be a reasonable incremental shipping cost for this claim. We also did not include additional third party inspection costs in our estimate since these costs were part of the COPF and would not likely increase just because the size of the exchangers was slightly larger.

"Engineering cost for this claim is estimated at $8,037.6 4 (29 hours). Procurement and construction cost is $1,204,703.58. Details of our estimate are provided in the tables below. We conclude that $1,212,741.22 is the value of CONPROCA’s claim."

275.
On its part, CONPROCA, in its brief dated February 15, 2011 specified the different elements taken into account by its expert to prepare its quantum, including, among others, the engineering schedule prepared during the project, the modification work to an existing facility, as well as CONPROCA's experience, requesting that its quantum be taken into account.
276.
The Tribunal does not find that CONPROCA's arguments detract from the statements made by the Tribunal Experts, whose appraisals it finds reasonable. Therefore, it will acknowledge the amount of US$ 1,212,741.22.

3.2.6.8 CRA-037: Design Change in Pumps, Unit No. 11.

277.
This claim was quantified by CONPROCA at: US$ 532,495.97.
278.
The value of this claim was adjusted by PEMEX calculating an engineering value in proportion to the value of the works.
279.
The Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. During the project, PEMEX agreed to the engineering hours and paid $50,997.44 for these costs as part of the Debt Amortization Agreement. Since the engineering hours were agreed to and paid, it is not appropriate to adjust them now. We consider that B&OB’s quantification of procurement and construction costs is reasonable and based on the actual work performed. We concur with the procurement and construction cost estimate of $532,495.97."

280.
The value established by the Tribunal Experts is found reasonable by the Tribunal, since the actual value of the work is taken into account. Therefore, the value to be acknowledged is US$ 532,495.97.

3.2.6.9 CRA-038: Design Change of Heat Exchangers in Unit No. 11.

281.
This claim was quantified by CONPROCA at US$ 855,114.77.
282.
PEMEX quantified this claim at US$ 756,912.54, according to the spreadsheet attached to its brief dated February 15, 2011.
283.
The difference between the two quanta corresponds to the reduction in the engineering value quantified by PEMEX at a certain percentage.
284.
In their report, the Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We made the following adjustments to their quantification to arrive at our estimate of cost for this claim. This design change required updating of drawings, preparation of purchase specifications for the new exchangers, and engineering for the foundations. We consider that some of the engineering hours estimated by B&OB should reasonably be lower.

"We adjusted the engineering hours for the various activities to arrive at a new engineering estimate of 353 hours for this claim ($97,83 7.48). We also adjusted the procurement costs related to inland transportation which were un reasonably high in the B&OB analysis. B&OB’s original estimate for inland transportation of an air-fin exchanger from Houston to Monterre y (Cadereyta) was $23,076 which is considered very high (roughly $23/mile round trip) for this activity. We estimated that $2,000 was a reasonable cost for truck freight for this item. Another similar adjustment was made to the inland freight for the other exchangers.

"Engineering cost for this claim is estimated at $97,837.48 (353 hours). Procurement and construction cost is $622,739.98. Details of our estimate are provided in the tables below, which are modified versions of those contained in the B&OB report. We conclude that $720,577.46 is the value of CONPROCA’s claim."

285.
On its part, CONPROCA, in its brief dated February 15, 2011 specified the different elements taken into account by its expert to prepare its quantum, including, among others, the engineering schedule prepared during the project, the modification work to an existing facility, as well as CONPROCA's experience in the project's development, and requested that its quantum be adopted.
286.
The Tribunal does not find that CONPROCA's arguments detract from the statements made by the Tribunal Experts, whose appraisals it finds reasonable. Therefore, it will acknowledge the amount of US$ 720,577.46 for this claim.

3.2.6.10 CRA-039: Complement to Piping System for Units No. 10, No. 11 and No. 12.

287.
CONPROCA quantified its claim at: US$ 1,201,829.68
288.
This claim was quantified by PEMEX at US$ 696,333.74 according to the spreadsheet attached to its brief dated February 15, 2011.
289.
The difference between the two quanta corresponds to the reduction in the engineering value quantified by PEMEX at a certain percentage.
290.
In their report, the Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We made several adjustments to their quantification to arrive at our estimate of cost for this claim. This design change required updating of drawings, preparation of new drawings and engineering calculations. We consider that some of the engineering hours estimated by B& OB should reasonably be lower, and therefore adjusted the Engineering hours for the various activities to arrive at a new engineering estimate of 3,336 hours for this claim ($503,879.72).

"Engineering cost for this claim is estimated at $503,879.7 2 (3,336 hours). Procurement and construction cost is equal to the B&O B estimate of $600,287.71 which we consider to be a reasonable amount. Details of our estimate are provided in the table below. We conclude that $1,104,167.43 is the value of CONPROCA’s claim.

291.
On its part, CONPROCA, in its brief dated February 15, 2011 specified the different elements taken into account by its expert to prepare its quantum, including, among others, the engineering schedule prepared during the project and the modification work to the existing documentation, requesting that its quantum be adopted.
292.
The Tribunal does not find that CONPROCA's arguments detract from the statements made by the Tribunal Experts, whose appraisals it finds reasonable. Therefore, it will acknowledge the amount of US$ 1,104,167.43 for this claim.

3.2.6.11 CRA-040: Replacement of Pumps Unit 12.

293.
This claim was quantified by CONPROCA at: US$ 578,203.69.
294.
This claim was quantified by PEMEX at US$ 534,959.78, according to the spreadsheet attached to its brief dated February 15, 2011.
295.
The difference between the two quanta corresponds to the reduction in the engineering value quantified by PEMEX at a certain percentage.
296.
The Tribunal Experts stated:

"We reviewed the B&OB analysis of quantification for this claim from their report of November 2009. We made several adjustments to their quantification to arrive at our estimate of cost for this claim. This change required updating of drawings, preparation of purchase specifications for the new pumps, and engineering for the foundations. We consider that some of the engineering hours estimated by B&OB should reasonably be lower, and adjusted the engineering hours for

the various activities to arrive at a new engineering estimate of 308 hours for this claim

($91,719.32).

"We also adjusted the procurement costs related to inland transportation which were unreasonably high in the B&OB analysis. We estimated that $1,500 was a reasonable cost for truck freight for this item. No adjustments were made to the construction cost estimate because we considered it to be reasonable.

"Engineering cost for this claim is estimated at $91,719.32 (308 hours). Procurement and construction cost is $463,172.31. Details of our estimate are provided in the table below. We conclude that $554,891.63 is the value of CONPROCA’s claim."

297.
CONPROCA, in its brief dated February 15, 2011 specified the different elements taken into account by its expert to prepare its quantum, including, among others, the engineering schedule prepared during the project, the modification work to the existing documentation, as well as CONPROCA’s experience in the project's development, therefore it requests the Tribunal to adopt its quantum.
298.
The Tribunal does not find that CONPROCA’s arguments detract from the statements made by the Tribunal Experts, whose appraisals it finds reasonable. Therefore, it will acknowledge the amount of US$ 554,891.63 for this claim..

3.2.6.12 CRA-041: Supply and Replacement of Equipment in Units No. 10, 11, 12, 13 and 19

299.
This claim was quantified by CONPROCA at: US$ 1,109,285.60.
300.
This claim was quantified by PEMEX at US$ 498,782.90 according to the spreadsheet attached to its brief dated February 15, 2011.
301.
The difference between the two quanta corresponds to the reduction in the engineering value quantified by PEMEX at a certain percentage.
302.
The Tribunal Experts stated:

"We re viewed the B&OB analysis of quantification for this claim from their report of November 2009, and made several adjustments to their quantification to arrive at our estimate of cost for this claim. This design change required updating of drawings, preparation of purchase specifications for the new exchangers, and engineering for the foundations. We consider that some of the Engineering hours estimated by B&OB should reasonably be lower. Based on our experience, we adjusted the engineering hours for the various activities to arrive at a new engineering estimate of 2,534 hours for this claim. No adjustments were made to the procurement and construction cost estimates because we considered them to be reasonable.

"Engineering cost for this claim is estimated at $483,047.2 0 (2,534 hours). Procurement and construction cost is $429,985.27. Details of our estimate are provided in the tables below. We conclude that $913,032.47 is the value of CONPROCA’s claim."

303.
CONPROCA, in its brief dated February 15, 2011 specified the different elements taken into account by its expert to prepare its quantum, including, among others, the engineering schedule prepared during the project and the modification work to the existing documentation, requesting that its quantum be adopted.
304.
The Tribunal does not find that CONPROCA's arguments detract from the statements made by the Tribunal Experts, whose appraisals it finds reasonable. Therefore, it will acknowledge the amount of US$ 913,032.47 for this claim.

3.2.6.13 CRA-042: Installation of New Humid Gas Compressor, Unit No. 10.

305.
CONPROCA quantified such claim at US$ 1,962,213.32.
306.
On its part, PEMEX quantified it at zero.
307.
In the cards enclosed to its brief dated February 15, 2011, PEMEX indicated that the amount of this work order is 0.00. Likewise, it added that CONPROCA's quantum of the Work Order is incorrect and excessive, therefore the amounts that were paid must be reimbursed or compensated by CONPROCA.
308.
On its part, CONPROCA stated that its quantum was based on contemporary records of the Project, including quotations of prices and purchase orders. In this sense, CONPROCA and its expert B&O calculated the net purchase price of the new compressor deducting the cost for the modification of the compressor as per the original scope of work. To do this, CONPROCA and B&O took the purchase price effectively paid by CONPROCA for the new compressor, which amounted to US$ 1,893,900.00 (supported by the Purchase Order for the new compressor) and then they subtracted the amount quoted by the supplier of the compressor, EBARA, in order to modify PEMEX's old compressor, that is to say, US$ 800,000.00, obtaining a total amount of US$ 1,093,900.00 for the claim. The quantum of the additional costs for the inspection of a third party, sea freight, import taxes, land freight and insurance was made based on the price paid. Regarding the costs of manpower and equipment installation, the quantum of CONPROCA was based on the records of the Project, such as man-hours sheets and daily reports, unit prices approved according to the GEN Catalog and Annexes to the COPPU, as actual manpower rates established by different subcontractors. B&O proceeded in the same manner
309.
On its part, PEMEX argued that CONPROCA did not incur costs in addition to the expected costs for the renovation and optimization of the existing system. In this regard, Pathfinder considered there is no difference between modifying the existing compressor and installing a new one, since the cost is approximately US$ 3 million in each case. For this purpose, Pathfinder referred to the communication from the manufacturer of the EBARA compressor dated March 25, 1998, who stated modifying the existing equipment would provide small commercial and technical benefits to the client. The term "small commercial benefit" implies that the difference in costs between a new and a modified compressor is insignificant. Furthermore, PEMEX instructed CONPROCA to proceed with the reconstruction of the existing compressor based on said report from the equipment’s supplier. However, CONPROCA, at its own risk, decided to replace the compressor with a new one, an action that supports its understanding that the replacement or modification costs would be the same.
310.
Likewise, PEMEX stated that neither CONPROCA, nor its expert quantified the value of the new compressor and the value of the repair to the existing compressor under the same criteria and considerations, therefore they generated an artificially large difference between them, as Pathfinder states, since items such as sea freight, import taxes, local transportation, insurance and costs for third-party inspection were not considered in the repair costs for the existing compressor. Likewise, it questions why B&O considers that Manpower and Equipment resources for the repair or for the new equipment were lower.
311.
On the foregoing, the Tribunal considers:
312.
In the SGS resolution (CAD-WOR-BL#2-092-01) dated September 22, 2000, which is binding for parties to the extent that the Tribunal concluded it was not invalidated due to error, the following is established16:

"From a technical point of view, the installation of a new wet gas compressor for Unit #10 is valid instead of reusing the existing one, according to what is established in Bid Bases.

"The cost of works requested by CONPROCA through work order CAD-WOR-BL#2-092-01 will be paid by PEMEX REFINACION before cost analysis, according to Unit Price Public Works Contract, since they are a work’s variation."

313.
From this point of view, the Tribunal points out that there is a variation in the works acknowledged by the Independent Expert; therefore, the point to be determined is the higher cost of the additional work, without it being admissible during this procedural stage question if it was admissible or not to install a new compressor and if CONPROCA is entitled to acknowledgement of the higher value for this item.
314.
It is worth adding to the above that after the issuance of SGS Resolution, PEMEX issued a Work Order for the works outside of the scope and paid US$ 184,647.00 for engineering and piping construction costs17.
315.
On the other hand, regarding the quantum itself, the Tribunal comments that in its expert report, B&O indicated that the Terms of the Bid were specific when requesting only that "[i]nternals of the existing compressor shall be modified by replacing the existing impeller with the existing casing." Consequently, the Terms of the Bid only established the replacement of the impeller, the shaft, the turbine's motor and the surface condenser18.
316.
Now then, in its letter dated March 25, 1998, EBARA indicated that in order to operate, a modification to the existing gas compressor would require the replacement of all the compressor's parts, except for the casing and the bearing housing; therefore, the modification did not have make sense business-wise19. From this point of view, the Tribunal considers it is not possible to deduce from this communication that the modification CONPROCA was to have made as per the ITB had the same value as the new compressor since, as previously seen, according to the ITBs the repairs CONPROCA would have to make were limited.
317.
Furthermore, the Tribunal comments that EBARA made a quotation for modification to the existing compressor on February 28, 199820. Likewise, the purchase order dated May 8, 1998 is included in the file. In it, the actual purchase price of the new compressor is indicated21. Such documents allow the difference between the modification of the compressor and the installation of a new one to be established.
318.
Since there are documents that allow the claim to be quantified; the Tribunal considers it is not a good idea to use other calculation systems, since they would only give approximations, such as the ICARUS system. On this point, the Tribunal agrees with that stated by the Tribunal Experts, who in the Hearing on Quantum held in November, 2010 stated it was not reliable to estimate costs with the Icarus system taking the 2009 basis to deflate such value for a period of more than ten years, since there are many inherent mistakes, particularly in a sector like this one where the construction cost increased more than double in four years22.
319.
On the other hand, when reviewing the detail of the claim, the Tribunal experts stated:

"We reviewed the analysis (B&OB and PFI) of quantification for this claim. During the project, PEMEX and CONPROCA agreed to the incremental engineering hours (2,117) and PEMEX paid $162,500.92 for these costs. Since the engineering hours were agreed to and paid, it is not appropriate to adjust them now.

"We reviewed the B&OB analysis of quantification for procurement and construction from their report of November 2009, and made several adjustments to their quantification to arrive at our estimate of cost for this part of the claim. Procurement costs related to inland transportation of several pieces of equipment were unreasonably high in the B&OB analysis ($54,695). We estimate that $10,000 was a reasonable cost for truck freight for the various equipment items that were transported from Laredo23, Texas and Mexican ports receiving shipments from Japan. No adjustments were made to the construction cost estimate because we considered it to be reasonable. PEMEX paid the incremental piping construction cost of $22,146.08.

"The total amount of this claim is estimated at $2,088,5 16.06, of which PEMEX has paid $184,647.00. Details of our estimate are provided in the tables below. We conclude that $1,903,869.06 is the value of CONPROCA’s claim."

320.
The Tribunal comments that although in the file there is no copy of the invoice relative to the equipment, it is clear that such transportation had to be incurred, because it is not included in the invoices from the equipment supplier24. To this extent, it is logical to calculate the relative value. The Tribunal comments that the absence of an invoice can have many explanations; such as, for example, that such equipment was transported by others and consequently, there was no individual invoice. The Tribunal considers that the quantum elaborated by its experts is reasonable, therefore the amount of US$ 1,903,869.06 is what CONPROCA is owed for this claim.

3.2.6.1 CRA-043: CONTINUOUS SUPPLY SYSTEM OF LIME DOSING IN UNIT 4

321.
CONPROCA quantified this claim at: US$ 216,350.99.
322.
PEMEX quantified this claim at: US$ 93,233.89 (as per the spreadsheet attached to its brief dated February, 2011).
323.
In their report, the Tribunal Experts stated:

"During the project, PEMEX and CONPROCA agreed to the incremental Engineering hours (2,214). Since the Engineering hours were agreed to, it is not appropriate to adjust them now. We consider that B&OB’s quantification of procurement and construction cost is reasonable and based on the actual work performed. The total amount of this claim is estimated at $216,350.99.

"Details of our estimate are provided in the table below. We conclude that $21 6,350.99 is the value of CONPROCA’s claim."

324.
As in the previous case, the Tribunal considers that the lack of an individual invoice that indicates the cost of transportation is not a reason to ignore that such expense had to have been incurred, since the price of the equipment did not include transportation25. The lack of a particular invoice may [have] different explanations, therefore it is appropriate to estimate the cost of the transportation. The Tribunal considers the analysis of its experts to be reasonable and therefore, it will acknowledge the amount of US$ 216,350.99.

3.2.6.2 CRA-044 Addition to the Rain Recovery System

325.
CONPROCA quantified its claim at: US$ 875,168.87.
326.
PEMEX adjusted such value taking into account a percentage of the engineering for the calculation of the value.
327.
The Tribunal Experts stated in their report:
328.
During the project, PEMEX and CONPROCA agreed on the gradual increase in the engineering hours (710). Since the engineering hours were agreed, it is not appropriate to adjust them now. We consider the quantum of the B&OB acquisition and construction costs to be reasonable and based on agreements made by the parties during the project concerning the quantity of work. The total amount of this claim is estimated at $875,168.87.
329.
The Tribunal considers that the experts' analysis is reasonable and, therefore, the value to be acknowledged for this claim is $875,168.87.

3.2.6.1 CRA-046 Addition of Filters to Lateral Stream, Unit No. 26

330.
CONPROCA quantified its claim at: US$ 707,382.52.
331.
PEMEX quantified this claim at: US$ 707,382.52, as stated in the spreadsheet attached to its brief dated February 15, 2011. However, no specific analysis was made.
332.
The Tribunal Experts stated:

"CONPROCA invoiced PEMEX an amount of $67,7 89.02 for the incremental engineering hours which we calculated to be 746 at a rate of $90.87 per hour (B&OB Appendix TER3-CRA-046-002). It is not clear to us that this payment was made, as stated by B&OB, because PEMEX does not list the payment in its D-Cuan -9 report. Since there is an indication that engineering hours were agreed to and invoiced, it is not appropriate to adjust them now.

"We adjusted the procurement costs related to sea freight and inland transportation which were unreasonably high in the B&OB analysis. B&OB’s estimate for sea freight and inland transportation of three sand filter packages originating in Pusan, South Korea is almost $62,000 which is considered very high for this activity. We estimated that $6,500 was a reasonable cost for sea freight for these items26 Likewise, we estimated that $2,000 would be a reasonable amount for inland transportation. Costs for third party inspection seemed high for this type of equipment so we adjusted them accordingly. Our estimated procurement and construction cost is $634,088.96. Details of our estimate are provided in the table below.

"The total amount of this claim is estimated at $701,877.98. We conclude that this amount, net of any payments already made for components of this claim, is the value of CONPROCA’s claim."

333.
From this point of view, the Tribunal considers the adjustment made by the experts admissible and to acknowledge CONPROCA's claim in the amount of US$ 701,877.98, also taking into account that PEMEX experts did not perform a specific analysis of this claim.

3.2.6.2 CRA-049 Change of Capacity of Oil Condensate System, Unit No. 26.

334.
CONPROCA estimated this claim at: US$ 498,836.40.
335.
In the spreadsheet PEMEX attached to its brief dated February 15, 2011, it indicated that the engineering value should be 16%.
336.
On their part, the Tribunal Experts stated:

"... The hours estimated by CONPROCA should reasonably be lower and we have revised them as follows:

- CONPROCA claimed 20 addition at hours to revise the equipment list. This task would consist of changing only a few numbers in a table once all of the design changes were complete and should require less than 2.5 days. We believe 4 hours is sufficient for this task.

- CONPROCA also claimed 100 hours to revise two data sheets. The revision of data sheets require much less than This quantity of engineering work. In this case, this task woul d consist of resizing a few pieces of equipment, such a s vessels and pumps, then replacing the old numbers in the data sheet s. The previous calculations would have been performed and saved electronically and thus easily updated with new flow rates, then the data sheets updated with the new sizes. It should not take more than 6man-days to update each data sheet, as claimed by CONPROCA, therefore we have reduced this to 8 hours per data sheet.

- In our view, the hours estimated for vendor print reviews are also overstated. A total of 120 hours was claimed for 12 vendor print reviews on this work order. These hours would be for reviewing vendor bids, which would not take a significant amount of time after already receiving and reviewing bids for the original design flows. These estimates were reduced from 10 hours per review to 4 hours per review.

- The time claimed for project coordination and procurement should also have been lower and has been reduced from 60 to 36 hours.

- We estimate that 104 additional engineering hours were required for this work order. This is reduced from 300 estimated by CONPROCA. This reduction lowers the engineering portion of the total claim estimate at Annex C-3 rates from $27,261 to $9,087. We consider that the total amount due to CONPROCA for this claim is $480,612.40."

337.
As in the previous cases, the Tribunal considers that the lack of an individual invoice for the transportation cost does not prevent the relative acknowledgement, to the extent that there are different reasons why such invoice did not exist and, in any case, such transportation cost was not included in the value charged by the supplier27. The Tribunal considers the adjustments of its experts admissible. Therefore, the amount to be acknowledged will be the amount indicated by the Experts of the Tribunal on the Quantum Stage, which amounts to US$ 480,612.40.

3.2.6.3 CRA-054: Increase of Tie-in Points

338.
CONPROCA quantified its claim at US$ 2,450,941.93.
339.
On its part, PEMEX quantified the claim at US$ 30,887.63, therefore CONPROCA has to reimburse PEMEX the amount of US$ 547,359.37 for overpayment.
340.
For this purpose, PEMEX stated that CONPROCA applied the engineering rates from Annex "C-3" which are exorbitant and unlawful. Also that CONPROCA made an erroneous and manipulated calculation of the quantities of Tie-Ins established in the ITB to compare them with the ones actually installed. PEMEX also added that the review made by PEMEX's expert, Pathfinder, to the P&IDs (Piping & Instrument Drawings) in CONPROCA's possession for the preparation of its offer produced a total of 641 tie-in points indicated, 68 points less than the 709 points CONPROCA claimed as installed and more than the double the tie-ins CONPROCA said there were in the ITB. It adds that in the original presentation of the claim, CONPROCA indicated that the number of tie-in points was 580, plus 126 shown as additional points. However, a few days later, in the second presentation of the claim, CONPROCA showed 273 tie-in points based on ITB plus 436 additional points. There is no explanation for the discrepancy or the change in these numbers. PEMEX adds that CONPROCA improperly included an average piping length per Tie-in of 16.25m, which was outside of the Tie-In item.
341.
On this point, the Tribunal considers the following:
342.
This claim is based on the SGS resolution (CAD-WOR-BL#3-107-01) dated November 24, 200028 that the Tribunal determined was not affected by manifest error. In such resolution SGS concluded:

"From a technical point of view, increase from 273 to 709 in tie-ins from Block #3 listed in Table II from Validity Technical Report is valid."

343.
Since the resolutions not vitiated of manifest error are binding on the parties, the Tribunal must conclude that CONPROCA is entitled to acknowledgement of the increase from 273 to 709 tie-ins, precisely as established by SGS.
344.
Now then, concerning its cost, the Tribunal considers the following:
345.
Firstly, as inferred from the witness statements by Mr. D.G. Kang and Mr. B.H. Kang, during the Project the Parties agreed on the scope of work as well as the work volumes that were outside of the scope of the COPF, and this gave rise to PEMEX signing various quantum documents29.
346.
On the other hand, PEMEX and its expert question the values to be paid for engineering which were determined based on Annex C-3. As stated in another section of this award, the Tribunal does not find Annex C-3 is invalidated, therefore it is a contractual document that is binding on the parties.
347.
Regarding the difference in length Pathfinder indicates, Mr. FREENY, who was part of CONPROCA's team of experts, stated:

"I might agree that it’s a difference of interpretation if you were talking about some sort of future concept of - what they’ve stipulated is more akin to what I would call a future tie-in point. Sometimes when we’re redesigning a project, we will ask that let’s leave a future tie-in connection because later I’m going to build another unit and I want to connect to that. and, in that case, a future tie-in quite often will consist of a short piece of pipe, a flange and a valve. But in this case, that’s not what happened. In this case, PEMEX said "please connect this point to that point, and there are nine hundred and something isometric drawings. An isometric drawing is simply a drawing that says here’s how we’re going to construct it for each pipe that will document it. We will go from there to there and it requires this many meters and it requires this many elbows and this many valves and has everything there. So it’s not - I really can’t write it off to a difference of interpretation. It seems that - that the evidence submitted that the parties had agreed to that documented the work that was actually done was just ignored, and I’ll leave it at that.30"

348.
Thus, the Tribunal considers that to the extent that it concerns establishing the actual cost of the tie-ins installed, the actual length must be taken into account and not a theoretical estimate of what would be an eventual tie-in point.
349.
Added to the foregoing is that stated by the Tribunal Experts31:

"During the project, PEMEX and CONPROCA agreed to the incremental Engineering hours (5,935). Since the engineering hours were agreed to and paid, it is not appropriate to adjust them now. Engineering costs were $578,247.05 using the Annex C-3 engineering rate for Unit 27 ($97.43/hour).

"We consider that B&OB’s quantification of procurement and construction costs is reasonable because it is based on their detailed review of piping drawings for the additional tie-ins. We reviewed PFI’s quantification of this claim and found it to be inconsistent with the SGS ruling because it only quantified 68 of the 436 additional tie-ins. In our opinion, the PFI quantification methodology for this claim lacks the detail required to properly estimate the procurement and construction costs. PFI would have likely reached a quantum amount very close to B&OB’ s if they had used the same analysis procedure for the 436 tie-ins. Total procurement and construction costs are estimated at $2,450,941.93.

The total amount of this claim is estimated at $3,029,1 88.98, of which PEMEX has paid $578,247.05. We conclude that $2,450,941.93 is the value of CONPROCA’s claim."

350.
The Tribunal agrees with the conclusion of its experts and it concludes, therefore, that CONPROCA is entitled to an acknowledgement of US$ 2,450,941.93.

3.2.6.4 CRA-072: Works Affected and Delayed due to Delay in Acquisition of Land and Necessary Works in Installation and Demolition of Temporary Fence at PEMEX’s Request

351.
CONPROCA quantified its claim at: US$ 5,484,971.61.
352.
PEMEX quantified this claim at: US$ 72,592.00.
353.
PEMEX considered the quantum of CONPROCA was wrong because it includes the topography works as additional detail engineering, and the costs of development of the topography for the ground of the COPPU's GEN are included in the unit prices of the earth moving activities. PEMEX added that CONPROCA improperly includes the ground leveling items for the Refinery’s expansion and for the areas of the Contractor's temporary facilities, well they are not admissible because the area for the expansion of the Refinery (K area) is evidently [in the] scope of the COPF, and the grounds for the Contractor's temporary facilities are the responsibility of the latter as per Clause 5.1 of the COPF. In addition to the above, in its economic proposal, CONPROCA quoted the temporary facilities of the Contractor.
354.
PEMEX stated that CONPROCA erroneously said that it received the K area land in December 1998, but this is not true according to the logbook note where it is established that the K area lands were delivered to it on July 16, 1998 (Annex E), and the logbook note No. 35 on Block 3 dated September 12, 1998 establishes that, on such date, works were being performed in the third layer of the ground of Tank TV-539, which is located in the K area. Furthermore, CONPROCA erroneously includes in its claim the purchase of land for embankment formation and compacting. The purchase of land was for leveling the K area and for the temporary facilities of the Contractor, so it must not be included in the quantum of the claim. Likewise, CONPROCA included in its claim the installation and dismantling of temporary fences due to the delay in the delivery of the K area, without subtracting what had to be considered in its proposal. On the other hand, PEMEX states that it does not understand the reasoning presented by CONPROCA to justify the installation of 3 temporary fences. PEMEX calculated the difference between what CONPROCA had to install (temporary fences as part of the normal activities for the development of the construction of the permanent fence in the "K" area of the Refinery) and what CONPROCA actually installed is documented, which was a total of 520m. CONPROCA included in its claim the construction of temporary roads for the installation of temporary fences due to delay in the delivery of the K area, without subtracting what it had to consider in its economic proposal. Finally, CONPROCA incorrectly deducted the profit on the works for the dismantling and removal of Conduit piping.
355.
In this regard, the Tribunal considers:
356.
This claim is based on the Resolution CAD-WOR-BL#3-1 22-1&2NW32 in regard to which the Tribunal found there was no manifest error. In view of the foregoing, any controversy related to whether the works referred to in the expert report were within the scope of COPF or not must be rejected.
357.
On the other hand, the Tribunal finds that during the performance of the contract, the parties agreed on the volume of the required works, as stated in the works budget from which the amount of executed works is inferred, without having demonstrated that what was included in such budget is incorrect.
358.
Concerning the remarks made by PEMEX about the water transportation, it must be noted that according to the testimony of Mr. D.G. Kang on July 31, 201033, the reference to water transportation is a typographical error, since the activities of the works referred in items 011,105 and 011,110 of GEN Catalog actually referred to soil transportation.
359.
On the other hand, concerning the date when the area of the K area was available, the Tribunal finds:
360.
In his statement, Mr. D.G. Kang stated that the land was delivered in four stages, three of them after July 16, 199834.
361.
On the other hand, in its Rejoinder for the stage of liability, PEMEX stated35:

"PEMEX, doing its best effort for reducing, as much as possible, the delays in the works of Contractor, achieved partial authorizations of the use of land for CONPROCA; the last part of the land that represented approximately 500m long of fence with approximately 2,700 meters was authorized by PEMEX on December2 2nd, 1998 when a progress of 6 5% existed in the construction of these works."[Free translation from the original document].

362.
Finally, Note 267 in the General Logbook on December 22, 1998, states36:

"CONPROCA continues executing the construction works of the Cadereyta Project as well as the reception of materials and equipments.

Today, the missing information of the polygon of the new fence at the south of the Refinery (500.0m approximately) is delivered to Conproca (Mr. J. J. Kang), completing the total of the information for the fence, scope of the Project, which up to date has a construction progress of 65%."

363.
Such document confirms that only on such date CONPROCA was informed about the total area available to it and, therefore, only on such date was all of the land delivered to it.
364.
Likewise, two documents signed by CONPROCA and PEMEX where such works is quantified are included in the file37.
365.
Concerning this claim, the Tribunal Experts stated38:

"The TE reviewed CRA-072 Late Land Acquisition in Area K as submitted by Alliance in the NCI / Alliance report of November 30, 2009 in the revised amount of $5,484,9 72. As shown in the Tribunal’s award this issue was included in a category of issues of SGS re solutions which "contained no manifest error." As noted by Alliance on page 301 of 342 of Volume II of the November 2009 report, CONPROCA and PEMEX have previously agreed upon the engineering man-hours, construction work, and volumes of materials to perform the extra work."

366.
In view of the foregoing, the Tribunal Experts indicated a value of US$ 5,484,971.61 for this claim.
367.
In virtue of all the foregoing, the Tribunal considers that the claim is admissible in the amount quantified by the Tribunal Experts and the amount of US$ 5,484,971.61 will be acknowledged.

3.2.6.5 CRA-073: Material from Block #1 and TV-536/537 is replaced due to Bad Con ditions of Soil in Unit 27.

368.
CONPROCA quantified its claim at US$ 1,664,274.75.
369.
PEMEX quantified this claim at US$ 0.00.
370.
For this purpose, PEMEX indicated CONPROCA included excavations and fillings that are part of the scope of the COPF contract in this quantum. Pathfinder considered that the Bidders knew the geological conditions of the Refinery before the delivery of their proposals through the Veritec study PEMEX delivered to them in April, 1997. In view of the foregoing, CONPROCA must have included in its proposal a budget for the excavation of inadequate soil and its subsequent filling with suitable material. Furthermore, CONPROCA included as excavation the removal of the filling material executed without Engineering's authorization. Likewise, PEMEX indicated that CONPROCA used water quantities per m3 of embankment outside of any technical possibility. Additionally, it commented that PEMEX provided the water inside the Refinery. Finally, PEMEX commented that CONPROCA presumes to be paid on the basis of a table presented in its original claim with volumes arbitrarily set, without any technical support.
371.
In relation to the above, the following is considered:
372.
The first thing the Tribunal notes is that this claim is supported on the SGS Resolution No. CAD-WOR-BL#3-122-03 dated February 22, 200139 which, according to that noted in the Award on Liability, is not invalidated by manifest error therefore it is binding on both parties.
373.
Considering the binding nature of the SGS resolution, the Tribunal considers that the right of CONPROCA is valid, therefore in this case it is not necessary to analyze the scope of the soil studies made at the time by Veritec and MECSA and the difference among them.
374.
Now then, during the execution of the contract, there were agreements on such quantum existed. Mr. D.G. Kang referred to such agreements in its Witness Statements dated November 24, 2009 and July 31, 201040. Additionally, the Works Budget signed by PEMEX and CONPROCA on January 17, 200141 is in the file.
375.
On the other hand, the Tribunal Experts stated42:

"During the project, PEMEX reviewed the incremental engineering hours (265) and signed the estimate sheet for these hours. We did not find evidence to support a formal Agreement that these were the hours to be paid, however, the estimate of engineering hours is reasonable given the scope of the work. Engineering costs were estimated at $25,818.95 using the Annex C-3 engineering rate for Unit 27 ($97.43/hour).

"We consider that B&OB’s quantification of procurement and construction costs is reasonable because it is based on their detailed review of the work involved in excavating the soil, replacing it and compacting it. We reviewed PFI’s qualitative analysis of this claim and found it to be inconsistent with the SGS ruling because it only seeks to refute it and the Tribunal’s ruling. Total procurement and construction costs are estimated at $1,638,455.80. Details of our estimate are provided in the table below.

"We conclude that $1,664,274.75 is the value of CONPROCA’s claim."

376.
The Tribunal agrees with the conclusions of its Experts and, therefore, it considers that the recognition of US$ 1,664,274.75 in favor of CONPROCA is admissible.

3.2.6.6 CRA-074: Filling Material from Block #1 was replaced due to Pollution by Leakage in existing Drainage Lines in Unit 27.

377.
CONPROCA quantified this claim at US$ 768,121.98.
378.
PEMEX quantified this claim at US$ 381,230.52.
379.
For this purpose, PEMEX indicated CONPROCA applied the item $12,030 for embankments, which corresponds to their formation and compacting with manual tools, which is not reasonable. Likewise, it stated that CONPROCA applied $10,730 relative to excavations for structures, which is not reasonable since this concerns 61,101.00m3 of excavation in surface zones of various hectares. Consequently, $9,004 relative to cuts with machinery in material must be applied. Additionally, CONPROCA considered a water volume for compacting of one m3 of water per m3 of compacted soil, which is not reasonable. It added that since the Unit Prices in the COPPU for the earth moving include an overhead, which includes all topography works the Contractor requires for its execution, no engineering charge is admissible.
380.
In the quantum stage, the Tribunal Experts estimated this claim at US$ 768,122.60 without making any additional comments.
381.
From this point of view, the Tribunal comments that the support for PEMEX's objection is a spreadsheet in which the correct value is estimated taking into account the prices indicated in each case. However, the documents or expert estimates which support how such calculations were made are not attached. For this reason, the Tribunal does not consider that the elements used by the experts from CONPROCA and the Tribunal to make the calculation are invalidated, therefore it will proceed to acknowledge the value quantified by CONPROCA at US$ 768,121.98, since it is lower than the value from the Tribunal experts and they did not specify the reason for the difference.

3.2.6.7 CRA-075: Remove Obstacles around Work Area in the Refinery (Site Access Difficulty), Unit 27.

382.
CONPROCA quantified its claim at US$ 1,087,920.19.
383.
PEMEX quantified this claim at US$ 179,971.13.
384.
For this purpose, PEMEX's expert, Pathfinder, indicated that the construction of berms in the green area south of the tanks is not admissible as additional work, in accordance with the minutes of meeting on September 25, 1998, where CONPROCA is authorized to produce berms with cut waste material in the south zone of the tanks in order to create green areas and, thus spare itself the transportation of such material to waste zones outside of the Refinery. The agreement was made under the idea there would be no cost for PEMEX since CONPROCA saved itself the transportation of cut material. Concerning the leveling of the ground at accesses and parking lots between Gates 6 and 7, Pathfinder considers it is not valid, since they are works that are part of the lump sum of the COPF. Regarding the installation and removal of temporary fences, Pathfinder considered it was not additional work according to the answer to question 37 in the 1st Round of Questions. Pathfinder only estimated that the dismantling of the temporary fence where it was necessary to remove the existing fences was admissible. It added that CONPROCA incorrectly included in this quantum the manufacture of windows and doors. Furthermore, it commented that this aspect was not included in the work order request, therefore the Independent Expert's resolution is not applicable.
385.
On this point, the Tribunal considers:
386.
Through Resolution CAD-WOR-BL#3-122-0543, SGS determined that PEMEX is responsible for the costs of the works that such work order refers to. The Tribunal resolved there is no manifest error in the SGS Resolution, so it is binding. Therefore, it is not admissible at this stage to analyze whether CONPROCA is entitled or not to the works referred in the relative work order.
387.
It is pertinent to indicate that CONPROCA's work order request included a detailed description of the activities performed44.
388.
From this point of view, the Tribunal considers there was an agreement during the contract on quantum, to which Mr. D.G. Kang45 refers, and that is reflected in the "Work Budget" signed by CONPROCA and PEMEX46.
389.
The experts from Baker and O'Brien reviewed the quantum made by CONPROCA in the manner stated in its report and they concurred with it47.
390.
The Tribunal Experts stated:

"PFI quantified this claim in its May 2010 report and arrived at an estimated value of $180,000. PFI contends that PEMEX is only responsible for a small portion of the work detailed in the work order that was reviewed by SGS (CAD-WOR-BL#3-122-5). Although we tend to agree with some of the points raised by PFI in this claim, it is not appropriate to adjust the work quantities that were reviewed by SGS and later deemed to contain no manifest error by the Tribunal.

"We consider that B&OB’s quantification of construction costs is reasonable because it is based on the work quantities contained in the work order reviewed by SGS. Total construction costs are estimated at $1,087,920.19. There were no engineering or equipment procurement costs claimed by CONPROCA.

"We conclude that $1,087,920.19 is the value of CONPROCA's claim."

391.
It is pertinent to indicate that Pathfinder noticed that the water transportation costs were applied in the quantum, but in the statement by Mr. D.G. Kang and B&OB's report, it is stated that water transportation costs were not included in this Claim, since the item claimed is soil transportation costs and the correct unit price is applied to it (as indicated in item 011,110 of GEN Catalog)48.
392.
In view of the foregoing, the Tribunal concludes that the amount of US$ 1,087,920.19 must be acknowledged for CONPROCA.

3.2.6.8 Supply of Electrical Power by Contractor

393.
CONPROCA quantified this claim at US$ 10,428,378.15. This claim is part of the Claim for Delays and Disruptions.
394.
PEMEX quantified this claim at US$ 3,182,550.88.
395.
PEMEX stated that CONPROCA did not subtract the moto-welders it included in its technical proposal. In this sense, it stated that such equipment, considered in the original proposal and which does not require electric power supply must not be included in the total quantum of the claim, since its cost was included in its economic proposal for the COPF. PEMEX added that CONPROCA quantified the equipment-hours incorrectly and outside of the regulations, since it took into account the time each piece of Refinery equipment entered and exited, and it considered 10 hours per day times 30 days a month. PEMEX commented that using this way of measuring machine-hours it is not possible to determine which equipment were underused or under repair and, therefore, they are treated differently than the 100% working equipment. Therefore to determine the equipment-hours actually worked, Pathfinder accepted the Equipment-Hours presented by CONPROCA, impacting them with a reduction factor based on its own entrance and exit logs for the Refinery’s equipment according to the reports of days worked, taking into account whether or not personnel worked on Sundays and Saturdays in the afternoon.
396.
Likewise, PEMEX indicated CONPROCA manipulated the variables involved in the hourly cost analysis of the equipment to inflate such costs, using values out of the industry standards.
397.
To resolve, the Tribunal considers:
398.
In the Award on Liability it was indicated that the SGS Resolution did not have manifest error and CONPROCA's claim CRA-119 was confirmed. The SGS Resolution (CAD-WOR-ALL 52)49 dated September 24, 2001 establishes:

"In view of the foregoing, after the review of the documentation presented by CONPROCA, as per SGS point of view, and applying the Clauses 5.6 and 9.3(b), all the direct, reasonable and documented expenses generated to CONPROCA for the electric power supply for the performance of the works until their completion, including the engineering, procurement, rent and/or purchase of equipment, operation expenses, reticulation, maintenance and other expenses directly related to the electric power supply, are exclusive responsibility of PEMEX REFINACION."[Free translation from the original document].

399.
According to the statement by D.G. Kang50, the total volume of the equipment-hours was agreed between the parties, which gave rise to the preparation of summary tables and the signature of the so-called "Work Generators" and "Executed Works Generators," which appear to be signed by CONPROCA's as well as by PEMEX's employees51.
400.
From this point of view, the Tribunal finds no reason to ignore the value of such documents.
401.
On the other hand, the unit rates applied were the rates PEMEX used in Annexes C-9 and C-19 of the COPPU. According to what D.G. Kang states, the unit rates approved were within the average and mostly under the actual average of the costs actually incurred.