Construction Law/Site Entry Ban
The issue pertains 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. The Employer cites 16.2; 19.1 and 20.1 to support his action.
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.
Thank you for this question.
The issue of a strike is a matter for the Main Contractor. Whilst the Employer might ask for an explanation and undertaking, as you have indicated, I see no reason why the lack of those documents should be cause for preventing the Main Contractor accessing the site, unless there are real concerns as to safety, going forward. Further, as the Employer has allowed the Main Contractor's sub-contractors onto the site, this seems to be a discriminatory act against the Main Contractor. As such, on the basis of the information provided the Main Contractor's position appears valid and its claims for delay and extension of time potentially valid.
Going forward and without knowledge of the cause of the labour action, the Employer should state his concerns clearly and negotiate with the Main Contractor how the latter is going to manage the situation going forward. This should be done quickly and with the intention of allowing the Main Contractor re-entry to the project.
In consideration of the issues you raise particularly, those matters usually fall within the Main Contractor's obligations. Where the Employer steps in and, in effect, takes the role of the Main Contractor by 'managing' sub-contractors directly, those obligations transfer to the Employer. If the Employer is intending to terminate the Main Contractor's engagement, and I presume there would be valid grounds as a termination for convenience would, in the circumstances, appear wrongful, this is not too much of an issue; However, where the exclusion of the Main Contractor is temporary, there arises the question of whether the Main Contractor remains responsible for any work performed by others in his absence. The longer the period of temporary exclusion the greater the concern for the Employer.
I would appreciate your comment on the Employer's position towards the Main Contractor from which I may be able to guide more specifically, but at the present time I suggest that the Engineer attempts to reconcile the position and have the Parties resolve the issues. Under this form of Contract the Engineer has a duty to be impartial.
I hope that this assists you.
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