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Construction Law/Interpretation of Sub-Clause 7.3

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Question
According to FIDIC 1999 Sub-Clause 7.3 "The Contractor shall give notice to the Engineer whenever any work is ready and before it is covered up, put out of sight, or packaged for storage or transport. The Engineer shall then either carry out the examination, inspection, measurement or testing without unreasonable delay, or promptly give notice to the Contractor that the Engineer does not require to do so."

My first question  is what does mean the wording "...whenever any work is ready and before it is covered up, put out of sight..."?

The second one is what does mean the "...unreasonable delay..."?

And third one is Shall the Contractor give a notice according to above mentioned Sub-Clause every time (for example on road construction ) when one lay of material is placed?

Answer
Dear Dan,

Apologies for lateness in responding swiftly.

In your first question, you wanted to know what does it mean by "...whenever any work work......sight". Yes, the meaning of this strictly apply mostly to works associated with underground like concreting and other masonry works, cabling and other works done below the ground level which requires covering up i.e. filling up or backfill and or permanently concreting or paving or surfacing. Since these appears to be permanent in nature as there may be no access to re-visit them after covering up and if these works were not properly inspected and approved before the covering up, it may warrant enormous losses to effect any repairs necessary. So before the works are covered up, the contractor must give this notice for the Engineer's approval based on witnessing of the appropriate tests required and also based on the tests reports and as built drawings (shop drawings) submitted. Such work may also not necessarily be underground, but they may also be works like; piping for water supply, sewage pipes, fire fighting installation piping and gas supply piping which are needed to be covered up i.e. concealed in ceilings, ducts and or insulated.

The unreasonably delay indicated in the clause is connected with time. It only explains that; the Engineer must not delay the "ready - for - inspection notice" that may have been served by the Contractor. Usually, the Contractor serves a notice through RFI for this purpose. At times, it may be vide letter or site memo as well. It may even be electronic (e-mail) where the contract allows same for the communication on the contract. Now, the challenge here is that; what is the reasonable time and what is the unreasonable time? Mostly, the reasonable period can be deduced from the contract by checking some number of days for notices and response from the Engineer. In some conditions of contract, there is maximum duration for which a Engineer is expected to reply back or confirm to the Contractor on a particular request or confirmation of verbal instruction, i (personally) always use this as the "reasonable period" that the contract intended. At times, it is stated as 5 days, at times, it is 7 days and at times, it may be  14 days in extreme cases. Another area where you can deduce this is in your programme of works for the project. Most programme would from time to time in appropriate sections indicate the period for this inspection and testing of such works associated with covering up. If you have such, then, if the Engineer delayed beyond that, it simply results to a delay even which may have impact on the completion date. In any case, "unreasonable delay" for an activity like inspection prior to covering up; would mean not more than 7days and if this is the case, the Contractor should have allowed for such and issue the invitation requesting for the Engineer's inspection and approval timely to avert delay more than these. In actual fact, the Engineer can issue a letter informing the Engineer in advance (and for the purpose of averting unreasonable delay) intimating the approximate date he intend to compete the works and indicating the proposed date for the inspection, test and approval being sought.

On the third question, i will advise and say YES. This helps the Contractor a great deal. And i know to administer these notices, if my suggestion in the above (last part) is followed, the Contractor may not suffer any delay from such as the notices would have been promptly served with enough advance notification for the Engineer to be prepared and be ready for the inspection, testing and or approval issuance. I will even suggest that, not only each layer of surfacing but even as you go from chainages to chainages.

Hope this helps.

Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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