Construction Industry/Dispute in Design & Build Contract
QUESTION: Dear Wael,
General Conditions of Contract: FIDIC Plant and Design-Build
I am grateful to receive clarifications for the following.
*The structure in the Contract has been designed as per BS 8110.
*The design has been done by a reputed Consultancy Firm selected by the
Contractor,with the consent of the Employer.
*The design has been approved by the Employer prior to Construction.
*After 10 years of the construction, a defect decided as Design
Failure has been identified by the Employer, and the Contractor
is being asked to rectify at his cost.
Considering the above facts, please clarify the following.
1. What is the Design Period of the structure as per BS 8110?
2. Is the Designer/Contractor, responsible for any defect (minor or
major) within this period even beyond the Defects
Liability/Maintenance period as per the Contract?
3. Is there any relevant specific clause in the Contract in this
4. Even such specific clause is not available, is the Contractor
legally liable for the rectification of this Defect?
The clarifications for above will be very interesting and
invaluable,since I am facing a such problem for the first time.
ANSWER: Dear Shantha
It is very important to establish how the defect was considered as a design defect and how the failure has been identified by the Employer. Was there a complete failure or partial failure and was the workmanship and type of material used excluded from the failure causes.
Nevertheless, it depends on the jurisdiction under which the contract is executed. In some countries, the Contractor / Designer is heled responsible for 10 years and in others the period could go up to 50 years. I think India has a 50 or 60 year liability period. of Course such Civil or common law requirements will be applicable regardless if such specific statement about design liability has been in the contract documents or not.
---------- FOLLOW-UP ----------
QUESTION: Dear Wael,
Thank you very much for your quick reply.
*This is a Water Treatment Plant, where the defect has been identified in a part of the whole structure, where there are internal tanks constructed on columns, the floors of which are subject to weight of water.
*These floors are reinforced only with one layer, placed at the center of the slab thickness and therefore the slabs are ineffective in resisting stresses due to the weight of water. The slab is now heavily cracked, bent and the whole structure has become almost unfit for use.
*As I have interpreted, as per clause 11 - Defects Liability, the Contractor is liable for defects in his Designs too further to Materials and Workmanship only during his Defect Liability Period of 365 days.
*Anyway I agree as you have quoted, the Contractor is liable for defect rectification as per Law.
*I tried to find out the actual Design Period of the structure as per BS 8110 but failed.
*If this incident is within the Design Period, I think it is not unfair to pass this serious error to the Firm who designed the Structure.
Please advise me further and if possible please intimate me the said Design Period.
you will not find any design liability period in the BS 8110 as this is a standard/ code for the design practice. You might find some thing related to the design period in the Form of indemnity required from the designer /contractor. It is also possible to find a statement in the contract documents about the liability of the design and its period.
in the case described above, it is strange that it took 10 years for the cracks to appear. has there been any repair before as it is completely insufficient to use one layer of steel at mid section of the slab?