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Aug 10 Q&A-1
Aug 10 Q&A-1
Regards,
Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder
The Following Questions have been raised during the recent SCA classes:Question:
What are the Contractor's entitlements if the Engineer fails to certify
a payment application and/or the Employer fails to pay?
Answer:
Under FIDIC - 4th, Employer's failure to pay, gives the Contractor an entitlement
to suspend the work or decelerate the progress (and to EOT and Costs if
consequently the Time for Completion is exceeded) in addition to termination
of his employment under the Contract (but under the UAE Law this cannot be
done without a court order). For Engineer's failure to certify, the Engineer
would be liable in tort for negligence or the Employer would be liable for
damages for breach of contract for his failure to get the Engineer to discharge
Engineers duties in a proper manner.
Under FIDIC 1999, Engineers failure to certify too entitles the Contractor to
terminate the Contract (but under the UAE Law this cannot be done without a
court order). We discuss these two topics in great detail with other
termination/suspension/de-scoping issues in relation to UAE law, in great detail
over some 9 hours at the Advanced Class. (After September 2010, next
Advanced Class is in March 2011).
Question:
Can the engineer under FIDIC force a contractor to carry out
additional works prior to agreeing its value, where such additional
works are not deemed necessary for completion of the originally
contracted works?
Answer:
No. However, though it is not necessary but if it is appropriate then it can be
instructed (under FIDIC 4 th) and valued in accordance with the Contract. (See
your notes of Session 1 - "Variations and Valuation of varied works"). If the
Contract is FIDIC 1999 then there are problems to do this due to the absence of
wording such as necessary and appropriate and therefore the legal
Question:
Why the engineer's decision is requested under Sub-Clause 67.1 of
the Red Book prior to commencement of arbitration although he
already made his determination before in respect of the same issue?
Is he expected to change his determination previously made?
Answer:
Yes. He should change if appropriate. His previous determination may have
been given after consultation with the Employer (probably with the approval of
the Employer), and therefore with compromises. But in giving his decision
under 67.1 he is not required to consult the Employer anymore. He acts as a
quasi arbitrator, and therefore his decision should be impartial, fair and
professional, requiring any previous compromises to be rectified. The status is
however different under FIDIC 1999 as the Engineer is the representative of
the Employer (and therefore is not the impartial Engineer of FIDIC-4 th) and that
is why Engineers Decision is not sought under FIDIC 1999 for disputes.
Therefore DAB (Dispute Adjudication Board) is a must although this is mostly
not being used! We discuss the implications of the Engineer acting as the
Employers representative, during the Advanced Class.
Question:
If progress is slow can the Employer terminate the employment of
the Contractor?
Answer:
Yes, but this depends on the wording of the Contract and other pre-requisites.
In FIDIC-4th Edition for instance, when the Contractors progress is slow and if
the Engineer has issued a notice pursuant to Sub-Clause 46.1 regarding the
slow rate of progress and the Contractor has still failed to comply, following
which the Engineer has issued a certificate pursuant to Sub-Clause 63.1 (b)
(ii), then the Employer can terminate the employment of the Contractor by a
14 day notice. However, depending on the law applicable to the contract the
Employer would also have to obtain a court order prior to such termination
(as in the UAE).
The matter is more complicated under FIDIC 1999 as the wording refers to
Termination of the Contract (and not totermination of the employment of
the Contractor under the Contract). The difference is discussed at the
Advanced Class. (After September 2010, next Advanced Class is in March
2011).
Dear Alumni,
Soon your company too would recruit fresh graduates as their remuneration would be lower and
fewer facilities would be required for them, according to the following survey:-
They would also bring with them new knowledge as their latest study programmes / syllabi were
no doubt updated since you graduated in the past. Therefore it is important for you to be up to
date with the latest developments in the construction industry and the new findings, which were
not included in your study programmes in the past. This could only be achieved if you
continuously keep yourself developed professionally. You have already commenced this process
(CPD Continuous Professional Development) by completing the Sound Contract
Administration (SCA) training programme.
You can stay one step ahead of the fresh graduates, if you can gain knowledge on topics that may
not have been included in their study programmes. You have already gained part of such
knowledge through the SCA and now you can gain more of such knowledge through the
Advanced Course (CA-AC).
Regards,
Prof. Sam.
Prof. Indrawansa Samaratunga PhD, DSc
FRICS, FAIQS, FIQSSL, FCIArb, FCIOB, FCMI, FASI, FBEng
Chartered Surveyor, Chartered QS, Chartered Manager, Chartered Builder