I am working as a Contract Engineer for the Engineer on a project pertaining to FIDIC MDB 2010 Conditions of Contract. My query is related to Sub-Clause 3.5 [Determination] of General Conditions of Contract. In one of the Contracts, the Contractor has submitted an extension of time claim. We have reviewed Contractor’s Claim in details as per Sub-Clause 20.1 GCC and find out that the Contactor has not fulfilled the requirement of the Contract in order to qualify for an extension of time. As the Engineer has to proceed under Sub-Clause 3.5 GCC simultaneously, therefore we called for consultation meeting between the parties. In Consultation meeting, we represent our initial findings to the Parties that the Contractor’s Claim did not qualify for extension of time but the Employer in a consultation meeting agreed to give extension of time to the Contractor and this agreement was recorded and take effect accordingly. My queries are as follows;
(i) Is the Employer has the authority to discharge the Contractor from his liabilities in a consultation process? Keeping in view that the Contractor’s Claim did not qualify for any entitlement.
(ii) Both Parties has the authority to amend the Contract with mutual agreement, then is it correct to do this mutual agreement under Sub-Clause 3.5 in a consultation process or it can be done elsewhere. Because I think, if such agreements has to be made without considering merit of the Claim, then why a detailed procedure of claim analysis is laid down in Sub-Clause 20.1 & 3.5 GCC.
I will be glad to receive your comments.
The Parties are free to do whatever they want within the Contract if they agree on it. At any time they can change the Contract or agree on something. This case, they decided to skip the Contract provisions - Sub-clauses 20.1 and 3.5. The Engineer, instead, cannot change the Contract.
I know that it can be frustrating for the Engineer, but this was the agreement between the Employer and the Contractor, and they are the Parties of the Contract. Usually, the Employer - but also the Contractor - has to justify their decisions in front of their Board or control bodies, but this is their responsibility, not of the Engineer.
Hope it helps.