Construction Law/FIDIC 1999 : Clause 15.2 (c) (i)
QUESTION: Dear Sir,
We have 2 works contract with two different contractor, one with FIDIC 1999 red book and another one is based on FIDIC 1999 Yellow book conditions of contract. In both contracts the contractor is not performing, already two extensions has been granted but still about 40% works need to be completed there are works where the contractor has just touched and then no works has been carried out.
Now we want to use FIDIC 15.2(c)(i) clause (contractor without reasonable excuse fails to proceed with the works in accordance with clause 8), what actually we need to have to use this clause, how we can substantiate this clause. Can we state in notice of termination that if the contractor will not finish the work by the extend time the contracts will be terminated, as the contractor is not following the program at all. Please guide me. Hope to learn from your expertise.
ANSWER: Dear Sir
I am taking this opportunity to reply your question for both work contracts.After two extensions have been granted in both contracts but still 40% works need to be completed, there are works where the contractor has just start the work and no work has been carried out and contractor has not follow the work programme submitted by him self.
According to FIDIC clause 15.2 (c) (i)of yellow and red book, you may proceed after giving notice to the contractor under clause 15.1" the Contractor fails to carry out any obligation under the Contract, the Engineer may by notice require the Contractor to make good the failure and to remedy it within a specified reasonable time."
Then if contractor fails to make good the failure and to remedy the failure,then Engineer may recommend to the Employer, to terminate the contract for the failure under clause 15.2 (c) (i).
I hope this will help you.
With best regards
---------- FOLLOW-UP ----------
QUESTION: Many thanks for your time and sharing knowledge with me. Just would like to know further that, since the contractor has not did many thing there is nothing for the contractor to Remedy the Defects. Are you saying that we can state the contractor that you are not following the program and if you will not follow the program and will not come up with the progress, we will terminate the works?
This is pleasure for to listen you again,I am trying to clarify the your query in this regard,You are saying that contractor has not did many things, there is nothing for the contractor to remedy defects, but contractor has to remedy the cause of failure not defect.
Contractor has not follow the program, and delay the work without reasonable excuse fails to proceed with the work or in other words "contractor demonstrate the intention not to continue performance of his obligations under the Contract"if it confirms.Then the engineer will recommend to the employer for termination under contract clause 15.2 (b) & 15.2 (c) (i).
i hope it will help more to you
With best regards