Construction Law/sub-clause 2.1


In the translation of FIDIC in Romanian the sub-clause 2.1 is translated as "Dreptul de acces pe santier". In the first phrase of the first paragraph is stated: "Beneficiarul va acorda Antreprenorului dreptul de acces pe Santier si punerea in posesie a tuturor partilor Santierului la termenul(ele) specificat(e) in Anexa la Oferta". My questions are the following:
1. What are the differences of access and possession of site taking into consideration that the Contract is under yellow book which also includes design, land surveys, etc.
2. Assuming that you are familiar with the Romanian laws, please tell me if the access to site has a different understanding than possession of site, and the correspondence to the Romanian protocol "Predare de amplasament"

Dear Helen,

Thank you for your question.

I believe that one should first look at the roots of that "Predare de amplasament" and all related process.

Please note that in the past, Romanian Construction Legislation was only including Red Book type of contract. Yellow Book principle has only been recently brought in.

As such, Romanian legislation only included for "possession of Site" at the time when Contractor was to start the Works - probably, further details may be provided by a lawyer.

But indeed, with introducing the Yellow Book type of contract, Contractor needs to accede the Site well before starting the Works, for land, geotechnical surveys, etc - which in the past was done by a designer (for the subsequent Red Book type of works contract).

Now, to answer your questions:

1) In the case of Yellow Book type contract, Access to Site should indeed be given in due time for enabling access of surveyors, without implying full possession of Site, i.e., for example the owner of an agricultural field can still use it for a while.

However, so far, I did not see anybody making that differentiation, to date, everybody grants full possession of Site from the beginning. Employers seem they still need to make some steps forward.

2) In the light of above explanations, possession of Site is precisely that "Predare de amplasament", as per applicable Romanian legislation.

Trust that answer your queries.

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