Construction Law/Clarificationn

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Question
Dear Peter,

I am currently working on a Road Construction Contract. The Contract is based on FIDIC Redbook 1999.

The project involves construction of a new 2 lane road parallel to an existing 2 lane road. In addition to this the scope also involves modification of an existing fence on both "RHS" and "LHS" of the road. The modification works involve removal of the Existing Chain link fence and installation of Sand Fence in order to avoid accumulation of windblown sand in the event of cross winds along the Fence, which currently is the problem with the existing Chain link fence.

Since as of the start date of the project, there was considerable sand accumulated along the existing Chainlink Fence, we as contractors advised the client that we would not be able to modify the existing fence unless the sand accumulated was cleared off. To this, the client responded with the following excerpt from the General specifications for the project:

"For the whole period of the project upto the issuing of the Taking over Certificate, the Contractor is responsible to remove from the project area any accumulated windblown sand at his own expenses."

Thus, my question is, based on the above excerpt, is the Contractor responsible for removal of sand that got accumulated only during the project period? Or is he also responsible to clear off all sand which got accumulated and was existent along the fence as on the start date of the project?

I hope i have made myself clear and expecting a clear response from your goodself.

Best Regards,

Jayan Chacko

Answer
Dear Jayan,

I presume that there were no questions and clarification during the tender period regarding this subject. Further I presume that you visited the site and saw all the sand which had to be removed and made a suitable allowance in your offer.  

The clause says nothing about removing only the sand that accumulated after the contract started, but any sand that accumulated in the project area.

I regret to say that you got caught this time.  Hopefully you will learn and recover the cost on the next project.  

Construction Law

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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