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Construction Law/Clause 20.1 Contractor Claims - Sub Clause 2.1 Right of Access to Site

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Question
We have a Plant Design and Build FIDIC Yellow Book Contract (1999)for a scope of work on a new conventional power station. The Design has been completed and approved by the Engineer, however The Employer has been unable to provide Access to the Site as stated in the Appendix to Tender. The Contractor issued Notice within the required timeframe of 28 days from becoming aware of this event. An Interim Claim was issued to the Employer and subsequent Monthly Interim Claims have been issued on an ongoing basis. The event happened 11 months ago and No formal response has been received by the Employer to Date. No Extension of time has been granted and the Completion dates have not been revised and have passed by 7 months. I am aware that the Engineer in Terms of Clause 20.1 is supposed to respond within 42 days of receiving the claims. What is the next Contractual step that we can take to get a response? Is the above grounds for termination by the Contractor?

Also the as we are not aware when Access we will be given I have maintained my Project team on standing time (not performing work) and thus incurring costs associated with this as if they move onto other projects they may be lost to the project. Records are being kept and have been presented as part of the Interim claims. What is the FIDIC position on standing time as part of a Contractor Claim?

Answer
Dear Chris,

We must be very clear as to what is meant by access to the site under clause 2.1.  Access in this sense means legal access, not physical access.  In other words, the contractor must be given the right to enter the site without fear of legal actions for trespass.  It does not mean that the Employer must provide external access to the site boundary.  If the Contractor needs to build a road to the site, then he should have included the cost in his offer.  My initial thoughts are that you are in for a big bill for liquidated damages and no recovery of your costs.  Remember, the Contractor has an obligation to mitigate the effect of any delays.

Please submit a follow up question if I have understood your query incorrectly.

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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.

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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)
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.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
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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
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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')

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

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B Sc(Hons) in Civil Engineering

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