Construction Law/FIDIC Cl 4.7
Dear Shri R. Sivaraman,
I am Natarajan seeking your expert views on the following:
FIDIC Clause 4.7, Setting Out: Understandably this is the initial phase of any Project. Mostly both Contractor as well as Employer/Engineer collectively deal with this and complete without much problem.
However in one of the Projects a dispute surfaced and both Contractor and Engineer started accusing each other. Here what I would like to know is a) What is the logic behind this Clause? b) Whose Responsibility is to provide Data? & c) If based on this some work was executed what would be consequences and who has to bear the consequences due to error in data?
I would be more grateful if the above points are clarified citing a case from your past experience.
Thanking you in anticipation.
Dear Mr Natarajan,
Sorry for responding very late. Let me give the answers one by one as below:
a) For any scope of work, the owner / the engineer on behalf of the owner has to provide the initial data, based on which the contractor shall quote his price and do all subsequent works. As a professional practitioner, the contractor is expected to verify the data for its adequacy to execute the scope of works and the cost pertaining to it. In case any discrepancy is found, he should bring it to the notice of owner / engineer and seek clarification and adjust his pricing while quoting.
b) The primary responsibility to provide the data is with the owner and engineer. Contractor has the responsibility to verify / validate the data provided by the owner / engineer. In simple words, the owner is responsible for accuracy of data and the contractor is responsible for the adequacy of data.
c) It is a debatable subject always and the judgment to be based on facts and merit of each circumstance and implications. If the data could be verified by the contractor (example: the local bench mark, subsoil conditions, wind speed) through reasonable experience and expertise, the cost of consequences shall have to be borne by contractor. If the accuracy of data could not be verified by a reasonably experienced contractor and when the contractor has to trust the data provided by the engineer and quote his price, (example - the exact location of bench mark), then the cost of consequences due to error in data has to be compensated by the owner.
Anyway, the experience of contractor, the accuracy and adequacy of data to accomplish the scope of works, the possibility of validating the data, history of any nearby projects done by the same contractor, etc are to be analysed while deciding the responsibility in this case.
I hope i have clarified your doubts though it is very late.