Construction Law/Time for completion
QUESTION: Dear Jonathan,
This a large scale construction project which is running under 1999 Red book.
The Appendix to Tender Sub-Clause 18.104.22.168 defines the Time for Completion as 40 months.However, under the "Checklist for Compliance" forming part of the post-tender correspondence, the duration of the Contract has been defined as 45 months.This checklist has been only signed by the Contractor.Since this document is included in the post-tender correspondence section, I hope there is no argument about the validity of the document. Please correct me if I am wrong.
Our Contract Agreement places the post-tender correspondence at a higher priority than the "Conditions of Contract" and "Appendix to tender".
Now I am confused about the Time for Completion.Please advise.
ANSWER: Dear Chinthaka,
I am not familiar with "Checklist for Compliance" since it is not a FIDIC term.
Under sub-clause 1.5 the Engineer shall issue any clarification or instruction if any ambiguity or discrepancy is found in the contract documents. You need to give notice of this discrepancy to the Engineer and request for his clarification.
You need to check also the Construction Programme considered,included and submitted during the tender stage, since you based your offer on this schedule (40 or 45 months). I do not know why there was a difference in duration between the two documents (perhaps an input mistake, typo error or a change in requirement - you need to check what is written).
Under sub-clause 8.3 the Contractor needs to submit a detailed programme to the Engineer within 28days after receiving the notice to commence. What did the Contractor consider in his programme under sub-clause 8.3 ( 40 or 45?).
Jonathan L. Peralta
---------- FOLLOW-UP ----------
QUESTION: Thanks for your reply.
1. "Checklist for Compliance" is a kind of document that Contractor has answered some quarries raised by the Employer at the post tender stage.In that quarry sheet, the Employer has asked Contractor "Are you aware that the duration of the Contract shall be only 40 months ?" and then instead of "Yes" the Contractor has put "45 months".I am not quite sure about the reason he answered as 45 months. However, until now the Employer has not shown his disagreement to this in any form.
2. Contractor has submitted his detailed programme by considering 40 months. Now we are at the final stage of the Contract duration. 8 months remaining.Now the Contractor has given his notice to the Engineer and without obtaining any clarification from the Engineer, he has send a notice that he will revise the programme by considering 45 months. My question is that, to how far is this correct?.Is it fair to raise this matter at this time of the project without giving notice at the beginning of the project?
Now things went really complicated, isn't it?
Sub-clause 22.214.171.124 defines Time for Completion.
If the Contractor submits his programme detailing the 40 months duration and the Engineer agreed and did not give any notice that it does not comply with the Contract, then the Contractor shall proceed. (sub-clause 8.3)
Unless otherwise the Engineer granted an EOT to the Contractor, the Time for Completion shall be 40 months.
He can revised the schedule provided that the Time for Completion is extended or he was granted an EOT under sub-clause 8.4
Jonathan L. Peralta