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damaged by the transport of materials or Plant and as the obligation contained in

the 3rd Edition to notify the Engineer of loads likely to cause damage has been
deleted from the 4th Edition, the Employer is left exposed to damage claims
which could have been avoided. It would normally be much cheaper temporarily
to strengthen a bridge than to repair it. This is an oversight that must surely be
rectified.

An addition to sub-clause 30.3 is the requirement that the Employer should


inform the Contractor about the negotiation of any settlement and consult with
him if liability is to be shared. In the 3rd Edition, the Employer would simply
negotiate the settlement and the Engineer would certify the amount payable by
the Contractor. The Contractor's only defence to excessive settlements would be
the difficult task of persuading the Engineer or an arbitrator that the amount paid
out was due to poor negotiation rather than the Contractor's lack of care for the
bridges etc.

This clause proceeds almost on the assumption that the Employer is part of the
government in the Country in which the works are taking place and the Engineer
is employed by the Ministry of Public Works or equivalent. The absence of any
reference to liaising with local authorities and the assumption that a Contractor
may set about strengthening bridges and "improving any road" will often be quite
unrealistic. In this regard, this clause should be read with clause 26.1
(Compliance with statutes, regulations) as the local law will often have provision
for the movement of exceptionally heavy loads around the country.

The liability of both Employer and Contractor should be covered by the insurance
under clause 23 (Third party insurance).

CLAUSE 31 : Opportunities for other Contractors

The Contractor is to allow the Employer's workmen, other contractors and local
authority workmen working on or near the site on work not forming part of the
contract all reasonable opportunities for carrying out their work.

If the other contractors request that the Engineer makes roads available which
the Contractor is obliged to maintain or if the Contractor permits use of
Temporary Works or Contractor's Equipment or provides any other services, the
Contractor is to be paid.

This clause is effectively unchanged from the 3rd Edition but, in common with the
policy of the 4th Edition has been divided into items to make the clause more
readable. It is submitted, however, that the words from "who may be
employed..." onward are intended to qualify (a) and (b) as well as (c) and should
therefore commence on the following line.

The presence on or adjacent to the site of other contractors can often be a


source of contention due to the obligation upon the Contractor to liaise and afford

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them access, but without the powers that he has in relation to subcontractors to
programme, control and monitor their work. Although the Contractor may obtain
extra payment for the facilities provided to other contractors, there is no express
provision for extension of time for any delay that results from their work. This is in
contrast to the ICE 5th and 6th Editions which provide for an extension "if
compliance...shall involve the Contractor in delay...beyond that to be foreseen by
an experienced contractor". The Contractor under the FIDIC conditions is left with
the task of trying to demonstrate that such delays fall within one or other of the
items in clause 44.1 (Extension of time for completion). Where the delay derives
from workmen or other contractors employed by the Employer, there should be
no difficulty in demonstrating entitlement under clause 44.1 item (d) "any delay,
impediment or prevention by the Employer". Delay by the work of duly
constituted authorities may be more difficult, particularly if it has to qualify as
"other special circumstances" under clause 44.1 item (e).

An extension of time may be available to the Contractor under clause 42.2


(Failure to give possession) if the work of the other contractors on site or relating
to the access to the site amounts to the retaking by the Employer of possession
of that part of the site. Although clause 42.2 addresses only the "failure on the
part of the Employer to give possession", it is submitted that by necessary
implication, it also covers delays caused by the Employer subsequently depriving
the Contractor of such possession. Compare the Canadian Federal Court of
Appeal decision of Queen v Walter Cabott Construction (1975) 69 DLR(3d) 542
where an Employer was held to be in breach of his obligation to provide an
unimpeded site when work on an adjoining phase of the site hampered the
contractor in the execution of his work.

Clause 53.1 (Notice of claims) applies to claims under this sub-clause so that the
Contractor has 28 days of the event to notify the Engineer of an intention to
claim. The notice requirement of clause 52.2 (Power of Engineer to fix rates)
does not, it is submitted, apply for the reasons set out under that sub-clause.

This clause should be read in conjunction with clause 19.1 (Safety, security and
protection of the environment) whereby the Contractor is to "have full regard for
the safety of all persons entitled to be upon the site" and clause 19.2 (Employer's
responsibilities) whereby the Employer takes on responsibilities in relation to site
safety where he employs workmen or other contractors on site. The Contractor
retains the safety responsibility in relation to the workmen of duly constituted
authorities.

The use of the term "written request" in sub-clause 31.2 and not "instruction"
suggests that the Contractor has some right to decline the request, regardless of
its reasonableness. However, on this occasion and the three other occasions in
the contract when the Engineer makes a request, the Contractor is obliged by the
word "shall" to comply with that request. Here, the relevant "shall" is in sub-
clause 31.1. The other clauses are clause 6.1 (Custody and supply of drawings
and documents), clause 14.2 (Revised programme) and clause 37.4 (Rejection).
In these three clauses, it seems that "request" is intended to be interchangeable

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with "instruction". An instruction to provide facilities in relation to other
contractors working off site could be challenged on the grounds that the
instruction was not on a matter "touching or concerning the Works" within clause
13.1 (Work to be in accordance with contract). Clause 2.5 (Instructions in
writing) does not cover requests or "requirements" in sub-clause 31.1: only the
requests are expressly to be written. This is no doubt because it is the requests
that may entitle the Contractor to recover costs.

Provision is made for the employment of other contractors in case of default by


the Contractor in the following clauses:-

- clause 39.2 (Default of Contractor in compliance)


- clause 49.4 (Contractors failure to carry out instructions)
- clause 63.1 (Default of Contractor)
- clause 64.1 (Urgent remedial work)

These contractors seem to fall within sub-clause 31.1 item (a) which yields the
curious result that the Contractor, having defaulted on an obligation under the
contract thereby causing the employment of another contractor, may be entitled
to payment for "allowing" the new contractor onto site.

Part II urges the Employer to include in the tender document details of any
anticipated works to be done by other contractors. The degree of notice given to
the Contractor at the outset, or indeed after the works have commenced, and
thus his ability to programme or allow for the other works, may well influence the
Contractor's entitlement to extension of time.

CLAUSE 32 : Keep site Clear of Obstructions

This clause, which is virtually unchanged from the 3rd Edition, requires the
contractor to keep the site clear of obstructions, rubbish and surplus equipment
and materials.

"Obstruction" is to be distinguished from the "physical obstructions" referred to in


clause 12.2 (Adverse physical obstructions or conditions) and is no doubt
intended to refer to obstructions of the sort that the Contractor is to store or
dispose of.

This clause is to be read in conjunction with clause 54.1 (Contractor's Equipment


etc.) which prohibits a Contractor from removing any Contractor's Equipment or
materials from site without the consent of the Engineer.

This clause should also be read in conjunction with clause 33 (Clearance of site
on completion) which addresses the position after the taking-over of the Works.

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