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Construction Law/Delayed site handover claim denied

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QUESTION: Dear John, We are operating under FIDIC 1999 designed bt the Employer Contract.
The site handover was delayed by one year and we were given EOT as such.
Following this we submitted our claim for costs but this has been rejected by the Engineer giving reference that in the Contract:
1.0 The paragraph for cost impact was deleted from the General Conditions of Contract in accordance with sub clause 2.1( Right of access to site)as per Particular Conditions of Contract.
In PCOC it was stated that the Contractor shall not be entitled to payment of any cost plus reasonable  profit OR give notice to the Engineer subject to Clause 20.1 if the Contractor suffers delay and /or incurs cost as result of failure by the employer to give any such right of possession within such time.
Under the above preview do we have the right to ask for financial compensation?
Kindly advice.
Thanks
Abdul Moid

ANSWER: Dear Abdul,

Thank you for this question.

This is extremely difficult to answer based upon such limited information. From one perspective it appears that the Employer anticipated a delay and the Contractor was aware that in the event of such delay it would be compensated only by time. Taking a different viewpoint I question whether the Employer always intended the delay and misrepresented the position when drafting the contract.

I also have to question when the Contractor was advised of the delay and whether there was any inducement for the Contractor not exercising its other contractual rights; for example suspension and termination. I question also why the Employer/Engineer did not instruct a suspension.

If you can provide additional information I will be happy to reconsider the question.


I hope that this assists you.

Kind regards,
John Dowse

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---------- FOLLOW-UP ----------

QUESTION: Dear John,
From the contract it appears employer took the risk of delay in  handover. However, to answer your question and give more clarification;the site was handed over in stages and we continued to work in whatever was made available to mitigate delay.This was the reason that no suspension or termination was sanctioned.The employer ultimately realized that the delay was of one year in handing over the complete site of works so was the EOT granted.
From the above, does it appear that we do not have the right to ask for compensation considering the Clause  20.1 mentioned in Particular Conditions of Contract as referred to my earlier question.
Thanks.
Regards
Abdul Moid

Answer
Dear Abdul,

Thank you for this additional question.

From your comment I would take a strict interpretation sub-clause 2.1. If the contract did not provide that possession of the site would be phased then it should have been given as a single unit. As such issue is not that you were denied access but that in variation of the contract the site was released to you in stages. This could help you to reframe your claim and overcome the Engineer's objections.




I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line

Training and consulting services are available, bespoke to companies and individuals.
John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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