Construction Law/Claim Notice - possession of Site
In accordance with provision of Sub-Clause 2.1 of GCC (MDB Harmonized edition 2010), the Employer has to give possession of Site within time stated in Contract Data. Particulars conditions states that the Possession of Site will be made before Commencement of Works.
The project relates to Rehabilitation and Upgradition of Canal System and associated Works. The Site of Work is extended over 400 Kms along the main canal and distributary systems and also includes structures (Cross Regulators, Head Regulators, Bridges etc) which are in used by the Employer and public.
The Employer has given possession vide a letter whereby instructed the Contractor to take possession of Site as defined in Drawings.
As the site is spread over a large area and it is not practicable to take possession over all parts of the Site at once. We (the Contractor) inspect the Site of Work and it reveals that some part are still where permanent works are to be constructed are still possessed by third party.
The Contractor requested the Employer to give possession of all parts of the Site and also requested to joint Site visit and demanded proof of land acquisition.
The Employer has taken a stance that disputed land (Site) will not affect the Contractor’s Commencement of Work and Works at disputed sites are to be executed at a later stage of the Contract.
We considers that possession of land issue may encounter when we actually starts the work at those sites.
My questions are as follows;
(i) Is the Sub-Clause 2.1 GCC, only foresee one notice at the Start of the Contract or multiple notices in accordance with programme of Works (actual start of individual activity)?
(ii) Failure of the Contractor to give notice at the Start of the Contract (as stated in S-Cl 2.1 GCC) will affect his entitlements under the Contract.
The obligation under the Sub-clause 2.1 is of the Employer - to give you the Site possession s that your Program of Works should not be hindered and the works will not be delayed. To preserve your right to claim for extension of time because the possession of the Site was not given to you as per the Contract provisions, you may want to give notice of claim according to the Sub-clause 20.1 and 2.1 in this view. Also, you can send another notice of claim (or more, if there are more sections of the works where the site possession will not be given in due time) when the works should start where you don't have the possession of the Site.
Failure of the Contractor to give notice of claim at the start of the Contract will not affect his entitlements - the clause says that the notice should be given when delay is occurred and/or Costs are incurred. Though, for safety reasons (to be sure that the Employer understands that the lack of Sire possession is a serious issue), I would recommend a notice to be sent also within 28 days from the moment when the Site possession should have been given.
All the best!