Construction Law/Possession of Site

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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,

1. There is only one notice at the start of the Contract, but the there can be multiple notices for possession of the Site, which can be dependant on the Contractor's programme of works.  

2. Failure to give notice could affect the entitlements under the Contract.  

I suggest that you produce a programme of works, using critical path analysis, in accordance with clause 8.3, showing when you actually need access to various sections of the site.  This programme must be updated monthly so that both parties have an objective view of progress and the actual need for possession of site.  Make it realistic or you will suffer later.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

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