Construction Law/Sub-CLause 2.1



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.


Umer Shabbir

ANSWER: Dear Umer,

Thank you for your detailed question.

In the described situation, firstly, make sure you do have records demonstrating the land s not available, regardless alleged possession given by the Employer.

The fact that canal is used by Employer and public, was most probably foreseeable at tendering time, but indeed, you could not foresee that part of the Site will still be possessed by third party.

In that case, you should immediately issue a Notice of Claim under 20.1 for Employer's failure under 2.1.

To answer your queries:

(i) one notice of claim should do.

(ii) as per 20.1 you must give notice within 28 days from the moment when becoming aware of the event. There might be ways around to avoid time bar, but to be on the safe side, you better notify the claim immediately.

Make sure you prepare your case and demonstrate that you can not reshuffle your Work Programme so that to not be affected by lack of access to that part of the Site and then proceed to Sub-Clause 20.4 to obtain DAB's decision on that matter.

To that end, you will need to demonstrate the delays on the Critical Path and to properly substantiate the quantum of delays related Cost and additionally incurred Cost.

Hope that helps.

---------- FOLLOW-UP ----------

QUESTION: Thanks for immediate reply.

In the situation described, is the Employer remains responsible to provide possession of Site throughout the period of Contract whether or not Notice under Sub-CLause 20.1 is served?

Thanking you in anticipation.


Umer Shabbir

Hello again Umer,

Thank you for coming back.

Of course, Sub-Clause 2.1 is crystal clear Employer is bound to give possession of Site.

But if no notice is served, you ay be forced to "swallow" the effect of such failure of delayed possession, including the chances to exceed the Time for Completion without having obtained any Extension of Time, or even having waived any right to obtain it.

Which means that aside delays and Cost you will suffer, you might become liable to pay delay damages!!!

Just issue that notice immediately!

Good luck!

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