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Construction Law/Omission of Works to be carried out by the same Contractor under different Contract

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Question
Dear Sir,

My doubt is related to FIDIC 1999 RB, Sub-clause 13.1 (d) which states "omission of any work unless it is to be carried out by others"

What is the interpretation of 'others' in that statement. What if the Employer want to omit some Works from one Contract and to add it to a separate Contract, when both the Contracts are with the same Contractor?.
Will that be a breach of Contract unless something like a Supplemental Agreement is reached or is it a simple case of VO (omission to first and addition to second)?

Please give me your opinion (1) if the Contractor is in agreement and (2) if he is NOT in agreement with this intention of the Employer (for various reasons).

Best regards,

Answer
Dear Hashim,
Thank you for your question.
‘Omission of any work’ (not to be performed by others).  Reference is to be made to the valuation procedures described in sub-clause-12.4. In general, work that employer required to be omitted from the contract and performed by others requires that the employer and the contractor make a formal supplementary agreement to that effect. I see no problem with this separate agreement even if both contracts are with the same contractor. It may please be noted that a unilateral act by the employer would be a breach of contract and the only course available is to award this work on completion of the present contract to another contractor as during the contract period it cannot be awarded to another contractor. There could be other options as well but I am not discussing that.
I hope this answers your question and if not please come back with specific point still requiring clarity.    

Regards,
Liaqat Hayat

Construction Law

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Liaqat Hayat

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I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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