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Construction Law/Problems with access to site

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Question
Dear Alina
We have a FIDIC 1999 Red Book contract with a general contractor to build a high rise apartment project. They provided a method statement for excavation and casting of mass foundation works that showed 3 site access points (the site has public roads on 3 out of 4 sides). The client proposed 2 main access points. The Contractor has now been refused access to 2 of the 3 access points by the local authorities (i.e. they have not been granted permits to use these streets for trucks etc) and has submitted a claim for delay / disruption.
How is this interpreted under the Contract? Clause 4.15 puts the onus on the Contractor, however what happens if he physically cannot access the site due to limitations set by the Authorities?
Kind regards
Colin Johnston

Answer
Hi, Colin,
It depends on the circumstances: on where the Contractor put his method statement - if it is in the Offer and the Offer was accepted, or if it was submitted after the Contract was awarded and if it was accepted/approved. Also, The Employer is to help the Contractor in getting the necessary permits, according to the Sub-clause 2.2, in a reasonable manner. Though, the access to the Site is a responsibility of the Contractor according to the Sub-clause 4.15 and the circumstances can only help him in demonstrating his case, not decide in his favour.
A more important issue can be if there were clarifications at the tender time regarding this issue: were there questions about the access to the Site and the Contracting Authority promised/guaranteed the access?
A Sub-clause that can be applied is 8.5 [Delays Caused by Authorities]: if the Contractor did everything needed by law to get the access and despite this the Authorities delay or disrupt the Contractor's work and the delay or disruption was Unforeseeable, then this is a cause of delay according to the Sub-clause 8.4 b) and, following the provisions of 8.4 b) and 20.1, the Contractor can get the extension of time to which he is entitled.
Hope it helps.
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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