The Role of the Employer&Contractor-FIDIC

7/27/2019 The Role of the Employer&Contractor-FIDIC

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The role of the Employer inaccordance with FIDIC

The Employer

The FIDIC standard form for the ContractAgreement includes the statement that theEmployer covenants to pay the Contractor theContract Price in consideration of the executionof the Works and the remedying of defectstherein.

However, this does not mean that the Employeris only required to appoint an Engineer toadminister the project and then sign thepayment cheques.

The Employer

Eventhough the Engineer is classed asEmployers Personnel there are some taskswhich are allocated to the Employer.

The Employer

The Employer could delegate the paperwork tothe Engineer, but the actual tasks require theEmployer to be involved.

It is important that the Employer designates astaff member, separate from the Engineer torepresent him whenever the Contract requiresnotice to, or action by the Employer.

Right of Access to the Site

The Employer shall give the Contractor right ofaccess to, and possession of all parts of the Sitewithin the time stated in the Appendix to Tender.

However, the Employer may withhold such rightof possession until the Performance Securityhas been received.


If no such time is stated in the Appendix toTender, the Employer shall give the Contractorright of access to, and possession of, the Sitewithin such times as may be required to enablethe Contractor to proceed in accordance with theprogramme submitted.


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If the Contractor suffers any delayas a result ofa failure by the Employer to give any such rightor possession within such time, the Contractorshall give notice to the Engineer and shall beentitled to:

Extension of time for any delay if completion is or willbe delayed and

Payment ofany such Cost plus reasonableprofitwhich shall be included in the Contract Price.


After receiving this notice theEngineer shallproceed in accordance with the clause ondeterminations to determine these matters.

However, if the Employers failure was causedby an error or delay by the Contractor includingan error in, or delay in the submission of any ofthe Contractors Documents, the Contractor shallnot be entitled of time, Cost or profit.


The possession does not necessarily meanexclusive possession, but shared possessionneeds clarification in the Particular Conditions.

When theContractor takes possession of theSite, he is responsible for safety, security and

insurance. If the Contractor does not have fullcontrol of the Site and the activities on the Site,or the site will be shared, then the extent of theContractors responsibilities must be clearlystated.


If the Employer fails to give right o faccess to and possession o f the Site

within the stated period then the

Contractor will be entitled to an

extension of time plus his costs and areasonable profi t.

Permits, Licenses or Approvals

The Employer shall provide reasonableassistance to the Contractor at the request of theContractor:

By obtaining copies of the Laws of the Country whichare relevant to the Contract

For the Contractors applications for any permits,

licenses or approvals required by the Laws of theCountry

Employers personnel

The Employer shall be responsible for ensuringthat the employers Personnel and theEmployers other Contractors on the Site:

Cooperate with the Contractors efforts and

Take actions similar to those which the Contractor isrequired to take in relation to the clauses relevant forSafety Proceduresand Protection of the

Environment.


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Employers personnel

Employers Personnel includes:

The Engineer and his assistants

All staff, labour and employees of the Employer and

the Engineer

Any other person who the Employer or the Engineerhas decided to designate as Employers Personnel.

Employers personnel

When two or more Contractors are working on the sameSite the possibilities of delays and costs from failures ofcooperation can lead to serious problems.

The FIDIC Clauses may be adequate when one

Contractor is carrying out a high percentage of the totalwork on the Site.

If the work is more evenly divided between two or more

Contractors, the provision of the Contract need to bereviewed.

Employers Claims

If the Employer considers himself entitled to anypayment the Employer or the Engineer shall givenotice and particulars to the Contractor.

The notice shall be given as soon as practicableafter the employer became aware of the event orcircumstances giving rise to the claim.

Employers Claims

The particulars shall specify the Clause or otherbasis of the claim, and shall includesubstantiation of the amount and/or extension towhich the Employer considers himself to beentitled for the claim.

Employers Claims

The Engineer shall then proceed in accordancewith the Determination clause to agree ordetermine:

The amount that the employer shall be paid by theContractor

This amount can be deducted from the ContractPrice and Payment Certificates.

Employers Claims

If the Employer deducts money from theContractor which he (the Employer) is notentitled to do, will enable the Contractor to claimfor all consequences of the deductions.

This could involve a substantial claim by theContractor. In such case, the Employer would beadvised to reserve his rights but not to deductany money until the final resolution of thismatter.


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The role of the Contractor inaccordance with FIDIC

The Contractor

In accordance with the FIDIC form, theContractor will execute and complete the Worksand remedy any defects therein, in conformitywith the provisions of the Contract.

In order to achieve this, the Contractor accepts alarge number of secondary obligations.

The Contractors General Obligations

The Contractor shall design (to the extentspecified in the Contract), execute and completethe Works in accordance with the Contract andwith the Engineers instructions and shallremedy any defects in the Works.


The Contractor shall provide the Plant andContractors Documents specified in theContract, and all Contractors personnel, Goods,consumables and other things and servicesrequired to carry out the Works.


The Contractor shall be responsible for the:

Adequacy

Stability

Safety

of all site operations and methods of construction.


The Contractor shall whenever required by theEngineer, submit details of the arrangementsand methods which the Contractor proposes touse.

No significant alteration to these arrangementsand methods shall be made without this havingbeen notified to the Engineer.


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The FIDIC Conditions of Contract forConstruction are intended to be used forprojects with the design provided by theEmployer.


The phrase execute and complete is importantin the Contract. The requirement to execute andcomplete can also give an obligation to completeany item of work which is necessary for totalcompletion of the Works, but may not have beenshown in detail on the Drawings.

This is an obligation to carry out and completethe Works and the question of whether paymentis included in the Accepted Amount is a separateissue.

Performance Security

The Contractor shall obtain a PerformanceSecurity for proper performance, in the amountand currency stated in the Appendix to Tender.

The Contractor shall deliver the PerformanceSecurity to the Employer within 28 days afterreceiving the letter of Acceptance, and shallsend a copy to the Engineer.


The Contractor shall ensure that thePerformance Security is valid and enforceableuntil the Contractor has executed and completedthe Works and remedied any defects.

If the Performance Security has an expiry dateand the Contractor has not become entitled to

receive the Performance Certificate by the date28 days prior the expiry date, the Contractorshall extend the validity of the PerformanceSecurity until the completion of the Works andany defects have been remedied.


The Employer may make a claim under thePerformance Security if:

The Contractor does not extend the validity of the


The Contractor does not pay the Employer an amounteither agreed or determined as discussed previously

(determinations under Engineers role)

The Contractor does not remedy a default within 42days after receiving the Employers notice requiring

the default to be remedied


The Employer shall return the PerformanceSecurity to the Contractor within 28 days afterreceiving a copy of the Performance Certificate.


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Contractors Representative

The Contractors Representative is theContractors equivalent to the Engineer.

Some Tender Documents specify:

the required qualifications

the required experience and

that the Contractors Representative must benamed

in the tender.

Contractors Representative

The Contractors Representative must:

Have received the consent (approval) of the Engineer

Not be removed or replaced without the prior consent of theEngineer

Have the authority to act on the Contractors behalf under theContract

Be on site whenever work is in progress

Be fluent in the language for communication stated in theContract.

Subcontractors

The Contractor shall be responsible for the actsor defaults of any Subcontractor and hisemployees.

Cooperation

The Contractor shall allow the following to carryout work on or near the site:

The Employers Personnel

Any other contractors employed by the Employer

The personnel of any legally constituted publicauthorities (government bodies) that carry out worknot included in the Contract

Cooperation

However, the Contractor may make a claim forUnforseeable Cost and get paid as a Variation.

Any delays would qualify for an extension oftime.

Setting out

The Contractor shall be responsible for thecorrect positioning of all parts of the Works, andshall rectify (correct) any error in the positions,levels, dimensions or alignment of the Works.

The Role of the Employer&Contractor-FIDIC

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