Being a project manager from the client side, I would like to know as per FIDIC can I force a contractor to carry out additional works prior to approval of his financial claim? The basic answer is YES, provided you follow the correct contract procedures. Subject to exceptions as stated in the Sub-Clause. The Engineer may have asked for and accepted a proposal, or he proceeds as Clause In a civil marine work contract of FIDIC conditions, disputes quite often occurs on fixing of revision of rates.
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Leaving the decision to engineer may not give an appropriate solution as persons holding the post of engineer may have different views and their decisions may not exactly match with the views of FIDIC authors. Please clarify the situations when revised rates are applicable for the entire quantity or for increased quantities only. The decision whether a new rate applies to the total quantity of an item, or just to the Variation quantity, will depend on the reason why a new rate is necessary.
This may depend on the reason and details of the change to the Contractor's cost. Sometimes the original quantity will already have been executed and paid at the BQ rate, before the Variation is ordered. However, sometimes the fact of the quantity being changed by the Variation will change the circumstances and costs and makes it reasonable to pay the total quantity at the new rate.
The new rate may differ if it is being applied to the total quantity or just to the Variation quantity.
The Engineer will, of course, take all these factors into account when calculating a new rate. The commentary emphasises the importance of consultation with both the parties. A contract was signed under the FIDIC Conditions of Contract which require that indices for the skilled and unskilled labour should be filled by the Contractor in the relevant Appendix while submitting the tender. This requirement including the source of the indices was however not fulfilled by the Contractor. This fact was noted but employer failed to get this requirement met and the contract was signed without this information.
The dispute arose when the contractor submitted escalation claim due change in prices of the labour component according to relevant provision. The contractor insists the use source indices issued by the local government for calculation of adjustment which is near the place of the construction and because this condition is more profitable to contractor.
The Client insists that he will use the indices issues by a gevernment office which are normally used in government contracts. I am the Arbitrator in one such case and need advice of FIDIC what will be the judicious coarse of action in this scenario. I however feel that entire responsibility of not providing this information cannot be placed on the Contractor and the Employer should have insured that Contractor provide this information before signing of the contract. I will be anxiously waiting for advice from your expert what reasonable coarse of action should be adapted in this dispute resolution as the Contractor has gone in dispute on this issue.
It seems that the Contractor made a mistake by not adding the information to the Appendix to Tender. The Employer then accepted the Tender and the Parties signed a Contract which included the mistake. Unfortunately you say that they cannot agree on the information which should be added to the Appendix to Tender. To correct the mistake requires a change to the signed Contract to add this information. Correcting a mistake in a Contract is a legal question which must be studied under the applicable law.
FIDIC cannot comment on such legal questions.
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Our firm has a contract for consulting services with the Government of El Salvador for the construction of major transportation infrastructure in the country. The construction of the first package of project, which included two meter bridges over the most important river in El Salvador, was completed last April. The Contractor is a Joint Venture of firms that is now claiming additional payments based on the contract documents.
In order to have a clear interpretation of the documents, we would like to clarify the following: Clause Regarding Clause He can do this any time up to his Final Statement and there is no time limit.
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The Engineer then has 84 days to respond. The Contractor cannot submit a "new'" claim for normal determination under this clause. The claim must first be processed under Clause 53, and only when a Clause 53 determination has been given which the Contractor finds to be unacceptable do we have a "dispute" situation which can be handled under Clause I would like to know if you can help me find information regarding the procedure and calculation of claims of any kind arising out of a Civil Engineering Construction contract. FIDIC publishes guides to each of its forms of construction contract, which may provide the guidance you require on the procedures for claims.
You would need to order the Guide for the use of whatever Conditions you are using. If your enquiry relates to October FIDIC's guides do not elaborate on the calculation of claims, so you might need to consult other publications.
It may have been republished and fulfil your needs. The problem is as follows: we have made a contract with a pre-hand over list made, with the Engineer, in April A new contract, given to another company in the same building was given in May , it was an obligation for me to give the keys of the building.
As the Engineer is in Zimbabwe and the Building is in Burundi, no engineer was there for the hand over of the inside of the building. Now, the Engineer asks us to repair some things which were not on the pre-hand over list. Can you please tell me what I have to do. However, it appears that the answer to your question depends upon whether a Taking Over Certificate has been issued.
If so, the pre-hand over list presumably advised you of the work described in Sub-Clause If not, the Engineer may be "specifying all the work which In either case, you have not indicated any reason for not complying with the Engineer's instructions. In other words, if the Contractor can claim for matters that happened during the construction period even after the Take-Over Certificate has been issued.
Regarding the application of Clause This clause requires the Contractor to give Notice of a potential claim within 28 days of the event occurring. This establishes his right to claim and he should then proceed to substantiate the claim according to Clause He can claim at any time - before or after Taking-over - if events occur before or after taking-over which he considers entitle him to claim. The intention of Clause If he did this within the time limits, then the claim should be evaluated according to the Contractor's submissions.
If he did not - as would appear to be the case - and has come in with a claim a considerable time after the event, then we would suggest that you have two courses of action. Firstly you should perhaps try to establish why he did not give notice within the 28 days. Either you can reject his claim on the ground that he did not submit it within 28 days as required by Clause Normally I would suggest it depends on the circumstances.
If the claim appears to be frivolous and confused with no substantiation possibly an event you knew nothing about you may well decide to reject it. But if it concerns an event of which you were aware which you knew had disrupted the Contractor, then maybe you could consider it under Clause Design and Construct Services for Electrical and Mechanical were tendered as diagramatic designs and are to be developed to the Approval of Engineer as part of obligations under the Contract and have various BOQ items.
Under which Clause can new rates be established for the re-measure of these Works?
Contractual Correspondence For Architects and Project Managers
The Conditions of Contract for Works of Civil Engineering Construction do not contain express provision for new rates being established for the re-measurement of non-varied Contractor-design works, where new items to the original BoQ have been necessitated by Design Development. Typically, Contractor-design works are priced on a lump-sum basis, and are not subject to re-measurement after Design Development, so such express provision would be inappropriate in the Conditions of Contract which FIDIC intended to be suitable for Employer-design works.
Has Employer got an authority according to FIDIC to terminate the contract of Engineer before completion of project and appoint another engineering company or continue with its own resources? What should we do as a contractor at this stage? By "continues to exist", we mean does not as a natural person die, or is not as a company dissolved. FIDIC cannot give specific advice in respect to the actions a party should take, and only undertakes to clarify aspects of its own provisions. You do not seem to need such clarification, but may need to obtain advice from a lawyer with expert knowledge of construction law.
There is always a possibility that some aspect of the situation which you have not mentioned would entitle the Employer to replace the Engineer under the law governing the Contract. For FIDIC, it seems that you should first decide whether the replacement "Engineer" is acceptable as such because, if not, you could inform the Employer accordingly and seek to resolve the matter before it escalates into a major dispute.
Regarding the correct application of the Red Book Contract, the Employer in compliance with sub-clause The Employer wants to employ another Contractor, which took second place in the initial, public tender, to complete the works. The further procedure will be in compliance with sub-clauses The questions is: is this procedure in compliance with the General Conditions of the Red Book 4th Edition?
We refer to your query whether a proposed procedure complies with the fourth edition of the General Conditions of Contract for Works of Civil Engineering Construction. FIDIC cannot undertake to provide advice on actual circumstances, and is only prepared to clarify and explain the meaning and purpose of the provisions it publishes in its Conditions of Contract. In the case of serious matters such as termination, legal advice should be sought. However, we would make the following observations, without concluding whether the Employer is entitled to proceed as you have described.
For these purposes, we start by assuming that the Employer's termination was valid by reason of the Contractor's breach of sub-clause 4. Such validity may, of course, be challenged by the Contractor. Following a valid termination, the Employer's options on employing another contractor would not appear to be constrained by the General Conditions, other than under Clause 63 with which you state the further procedure will comply , although they may be constrained by the applicable law.
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You mention compliance with sub-clause Applicable law may constrain the Employer's rights in respect of subcontracts which were associated with the Contractor's breach of sub-clause 4. After termination, his previous unwillingness or inability would not seem to entitle the Employer to invoke sub-clause As regards employing a contractor which took "second place The choice of replacement contractor is a matter to be decided by the law relevant to the procurement procedures and any constraints imposed by those providing funds for the project.
As you may know, there is very limited recourse to the law here, especially for foreigners. Both Contractors are likely to weigh the costs of Courts and further Delay against the benefit of any payment at all; one has already given in, but the other is still fighting, or perhaps more realistically, negotiating. What should I do, please: indeed, is there anything that can be done? This is the worst case of abuse of Contract I have come across in more than 20 years here, though the amounts are relatively small.
Whilst we can sympathise with the situation described in the question, there is not a lot FIDIC can recommend or that he can do as Engineer in this case. The situation described is, unfortunately, not all that uncommon in some Middle East countries and the ultimate decision of what to do lies with the Contractor.