Construction Law/Notice of Claim

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Question
Dear Sir,

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.

Regards,

Umer Shabbir

Answer
Dear Umer,

Thank you for this question.

Under the FIDIC contract you are obliged to give notice when you become aware of an event or circumstance for which you intend to make a claim. At this time, I suspect that the Employer is correct in saying that the presence of those third parties will not affect your (the Contractor's) ability to start work at this time. Your notice, therefore, should be to state the event/circumstance and give the Employer an indication of the latest date by which you require those other areas of the Site to be available to you without obstruction.

Sub-clause 2.1 should not be read without consideration of sub-clause 20.1. You should send as many notices as are necessary, when the need arises, but within the time provided under sub-clause 20.1. A failure to give a notice now should not affect your entitlements later but I suggest that you give a notice now in the format I outlined above.





I hope that this assists you.

Kind regards,
John Dowse

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Construction Law

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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