I am working on project based on the FIDIC 1999 harmonised contract.I want to ask that if the Contractor do not complying/responding to Engineer's instruction e.g.
Submission of priced break down of some BOQ items even after issuing a couple of reminders.
Under Clause 8.3 Contractor submitted a programme, but there are major variations under the Contract and scope of work was revised considerably. The Contractor is not submitting the revised programme even after asking many times.
What could Engineer do under contract provisions. there is a Clause 15.1 Notice to Correct to be applied if contractor fails to carry out any obligation under the contract but that would lead to termination by Employer, which of course would not be a right choice in my opinion.
Indeed, 15.1 can be a solution, even if not advisable, unless the Employer is determined to go further, and to really terminate the Contract if the Notice to Correct is not complied with.
Other solution would be to make the Contractor aware of the consequences of his refusal to submit the breakdown of prices and the updated programme of works:
- the Scl. 14.1 says that " the Contractor shall submit to the Engineer, within 28 days after the Commencement Date, a proposed breakdown of each lump sum price in the Schedules. The Engineer may take account of the breakdown when preparing Payment Certificates, but shall not be bound by it." The same when it is about variations and new prices, even in case of "normal" unit prices, not only lumpsum prices: the Engineer, if not being provided with the breakdown of the prices, either cannot estimate the new price (and cannot issue the IPC or the variation order, and the Contractor cannot take advantage of this, by claiming against the Engineer, the failure of the Engineer in issuing the IPCs and VOs being caused by the Contractor himself), or estimate them at a very low lever, and the Contractor shall come with the proof that the unit prices should be higher, i.e. with the breakdown of prices.
- not submitting the programme of works will not allow the Engineer to assess and evaluate the extension of time, in case the Contractor will ask it, and will bot, even, allow the Engineer to be there and supervise the works, so no certification of the works, no payment to the Contractor, etc.
Making the Contractor aware of these would make the Contractor to think twice before not complying with these requests of the Engineer.
Hope it helps.