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Construction Law/Debarment of Contractor from Site

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Question
Kindly advise in the issue pertaining to a building construction project under execution in the Gulf in accordance with FIDIC Red Book 87/92.
Owing to internal issues, a section of Main Contractor's workmen struck work and by way of protest assembled outside the Site, briefly holding up general traffic in adjoining area.
The Employer has sought Main Contractor's explanation for the incident, and an undertaking against its recurrence.

However, in addition, the Employer has barred Main Contractor's entry to the Site until such time as the two documents were furnished by Main Contractor; the subcontractors including the nominated ones, have, however, been exempted from the ban.
In support of his action, the Employer cites 16.2; 19.1 and 20.1.

The Main Contractor has contended such action of Employer's to be:
a) outside the Contractual authority; b) an act of prevention, causing disruption and delay to his works, and notified his intention to claim an EoT and associated costs etc.; c) discriminatory; and d) aimed at undermining the Main Contractor's authority w.r.t. subcontractors.
Kindly advise the contractually valid approach from hereon wards.
Please also throw light on the allied issues that arise from the same  viz responsibility of HSE; QA/QC; Site Progress; Plant & Machinery; Finished permanent works; Security etc., given that the Main Contractor's absence from the Site.

Answer
Dear Sarvsri,

I think that the reliance on clauses 19.1 and 20.1 is questionable.  It appears that the Contractor's employees have caused no damage to the site.  It also appears that only part of the workforce demonstrated so it would be unreasonable to ban all employees, including staff.  If the Employer is relying on clause 16.1, the I would expect him to name the individuals concerned, not apply a blanket ban.  The removal of specific individuals could cause wider disturbances on other sites.  

I would expect the Contractor to advise on the reason for the disturbance, but I see no reason for the Employer to interfere.  Requiring an undertaking against a recurrence is restricting the Contractor's freedom to control his staff.  While the Contractor is banned from entering the site, he cannot control the quality of workmanship, nor can he fulfil his other obligations.

It appears to me that there has been a breakdown in trust between the Employer and the Contractor and that this project will end in expensive arbitration without some movement on both sides.  In the main, I have a certain sympathy towards the basis of the Contractor's claims.  Without knowing more, I think that the Employer has exceeded his authority.  I guess that it all depends on the reason for the demonstration.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

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I said it in German and Greek:
But I wholly forgot (and it vexes me much)
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