Construction Law/Faulty Design

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QUESTION: Dear Majid
Under the contract of FIDIC 1987 can Engineer insist to carry out construction while promptly intimated the fault in design by the contractor. Or can engineer ask to provide shop drawings based on the construction drawings when tender drawings and construction drawings are same.
Regards
Rafi

ANSWER: Dear Rafi

Thanks for your question. I understand from your question that the contractor must have intimated the Engineer about the fault in design and have fully explained the basis why the contractor thought so. The Engineer should not take such an objection lightly and must assess the reasoning of the contractor by referring the case to the designer for a quick check. The Engineer, based on the information by the designer that objection is without a valid reason, will instruct the contractor to continue with the work by preparing the shop drawings based on supplied drawings. In case the designer agrees with the objection, then the Engineer will stop the contractor from further work and ask the designer to check in detail the design and prepare revised drawings. The Contractor in that case may be entitled for at least an extension of time (EOT), should he (contractor) prove that such a stoppage has delayed his work.

I understand that this approach is a prudent one to be adopted by the Engineer irrespective of the form of Contract he is using. The Engineer is duty bound not to take any risk with doubtful design.In Fidic 1987, under clause 8.2, the contractor is not responsible for the design and specifications of the permanent works and his liability is limited to the design of that part of the permanent works which are specifically mentioned to be designed by the Contractor.

However, I must say that the contractor should also be very careful about suggesting any design fault and must know that showing an irresponsible behavior in such cases may be very risky and that all the time wasted in the process may go to his account, in case it is found that the objection was without any firm ground.

I hope this answers your question. However if you need any further explanation, then you are most welcomed through a supplementary question.      

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

QUESTION: Dear Sir
Thanks for your prompt reply. The second part of my question was Can engineer insist to provide shop drawings when the provided construction drawings and tender drawing are replica of each other.
Thanks and Regards
Rafi

Answer
Dear Rafi

Thanks for your follow-up question. As I explained earlier, the responsibility for design rests with the Engineer/ Employer. Similarly submission of shop drawings is the responsibility of the Contractor. The situation does not change even when the construction drawings and tender drawings are the same. Shop drawings are meant for explaining the missing details, if any, and the sequence of carrying out the works. Sub clause 7.1 states, 'The Engineer shall have authority to issue to the Contractor, from time to time, such supplementary drawings and instructions as shall be necessary for the proper and adequate execution and completion of the Works and the remedying of any defects therein. The contractor shall carryout and be bound by the same'.

If the Engineer instructs the contractor to submit shop drawing even if both the tender and construction drawings are the same, the contractor has to follow it under the above sub clause. The shop drawing may be required to highlight any detail which the designer has not provided and/or the Engineer may consider it proper to know from the contractor as how will he proceed with that part of the work. One thing may pleas be kept in mind that submission of any shop drawing will not dilute the liability of the Engineer/ Employer regarding its design which they have provided to the contractor, specially when the contractor has pointed out the fault and that was not accepted by the Engineer. However the contractor, while submitting the shop drawing may either incorporate the design change which he considers appropriate or put a note that the shop drawing is based on the construction drawing supplied by the Engineer.

I hope this answers your question.  

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Abdul Majid Khan

Expertise

I am interested in questions related to time Extension, Liquidated Damages,variations, price adjustments,payments, disputes and Dispute Board under FIDIC IV, FIDIC 1999 and FIDIC 2006 Harmonized Documents.

Experience

I have been heading the Construction Management Division and Contract Divisions of National Engineering Services Pakistan (PVT) Limited, NESPAK, the largest Consulting Engineering Firm in Pakistan, for more than seven years and two years respectively. I have also worked as "The Engineer" on a number of projects. I have been working in Saudi Arabia for about seven years on a road projects. Additionally I worked as Arbitrator and am member of few Dispute Boards in individual capacity on Asian Development Bank funded projects.

Organizations
Inland and in Middle East. I have worked with National Engineering Services Pakistan (Pvt) Limited (NESPAK)as my Employer for more than 27 years in Pakistan. In Saudi Arabia I worked for Rashid Engineering, Consulting Engineers during 80s. After retirement I provided advisory services to NESPAK on technical and contractual matters to its various divisions and lately I was appointed as Advisor to Managing Director NESPAK on Technical and Contractual matters. Currently I work as Free Lance Contract Specialist on Fidic Form of Contracts.

Education/Credentials
I am a graduate with a B.E (Civil Engineering) degree. My year of graduation is 1970.

Awards and Honors
A few appreciation Letters and Honorariums during my service in NESPAK. I remained member of Administrative Committee and Board of Management of NESPAK. I had been part of the Management Committee in the absence of Managing Director.

Past/Present Clients
Most of the Clients used to be Government Departments, Corporations and Authorities. In Saudi Arabia the Client was Ministry of Communications. As Arbitrator and Dispute Board (DB) member, I provide services to various Government Departments and Contractors.

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