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Construction Law/Rights of Way and Facilities

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Question
Hi,

FIDIC MDB 2010 Conditions of Contract

Sub-Clause 4.13[Rights of Way and Facilities] states " Unless otherwise specified in the Contract the Employer shall provide effective access to and possession of the Site including special and/or temporary rights-of-way which are necessary for the Works. The Contractor shall obtain, at his risk and cost, any additional rights of way or facilities outside the Site which he may require for the purposes of the Works."

In my understanding, Employer responsibility to provide possession of Site and special or temporary right-of-way is limited to the Permanent Works only. Because according to Sub-Clause 1.1.6.7 ,

“Site” means the places where the Permanent Works are to be executed, including storage and working areas, and to which Plant and Materials are to be delivered, and any other places as may be specified in the Contract as forming part of the Site.

Sub-Clause 1.1.5.8, “Works” mean the Permanent Works and the Temporary Works, or either of them as appropriate.

In Original FIDIC RED BOOK 1999 , Sub-Clause 4.13 also put this responsibility on Contractor to arrange temporary right-of-way for Site (Permanent Works).

Foregoing in view, I interpret that in FIDIC MDB 2010 Condition of Contract, the Employer is responsible only to arrange possession of Site and right of access for Temporary or special right-of-way for only permanent Works only.

Is my understanding is right? Please also explain your point of view for this. Thanks

Answer
Hi, Umer,
I totally agree with your reasoning. More than that, the Employer is "responsible" for the Permanent Works - he wanted them to be there and in that way - but the Contractor decided about the Temporary Works - he is doing them in the way he wants and where he wants, so that they help him to execute the permanent Works.
So, good reasoning, I agree.
Best regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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