You are here:

Construction Law/Prevention by Employer

Advertisement


Question
Your expert opinion is sought regarding an issue concerning 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.
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,


Thank you for your question,

Obviously, the Main Contractor (the Contractor) is responsible for any eventual delay caused by the their workers' strike and any eventual consequence of traffic being blocked in the area. And any other related inconvenience caused by Contractor's workers.

By all means however, the Employer did not have any right to block Contractor's access, nor to act in the way they did.

Obtaining explanations and commitment do not need to stop Contractor's access.

Now, having established that, we need to look at the actual consequences of that act of the Employer:

- delays: if there were delays due to the strike itself, it is Contractor's responsibility. If there were additional delays, specifically and clearly due to Contractor's  prevention to enter the Site, they can be claimed from the Employer.

Providing the effects of the two different delays are clearly separated and acknowledged.

2. Likewise, if there is any other tangible effect, as the ones you mentioned, indeed, Contractor can claim against, providing in each case, a relevant Sub-Clause can be indicated.


Please note that you need to differentiate what is unethical, unfair, etc. and what is not in line with the Contract. As well, you need to differentiate the "theoretical" losses, e.g. loosing face in front of Subcontractors, etc. and the actual losses, which can be quantified, demonstrated and backed up with Contract Subclauses.

Hope that helps.

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Florin NICULESCU

Expertise

Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.

Experience

Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

©2016 About.com. All rights reserved.