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Contractor's Liability

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Contractor's Liability

Postby Jerad » Fri May 13, 2016 9:53 pm

Dear John,

Under Fidic 1987 4th edition, clause 8.1(Contractor's General Responsibilities)the Contractor should notify the Engineer of any error, fault or other defect in the design or the specification for the works                                                    The question is;                                                                To what extent would the Contractor be liable in the event of failing to report faulty design? and in such case would he, contractually,be responsible of consequent delays and additional costs?

Regards
Jerad
 
Posts: 37
Joined: Fri Jan 31, 2014 1:07 pm

Contractor's Liability

Postby Timeus » Tue May 17, 2016 6:46 pm

Dear Wael,

As you are probably aware, under the FIDIC 1987 form of contract the Employer is responsible for the design of the Works and carries the liability for the effects of any errors in that design.

Clause 8.1 of the General Conditions requires the Contractor to give prompt notice of any error, omission, fault or other defect in the specification or design which he(the Contractor) discovers when reviewing the Contract or executing the Works.

The difficulty in placing any liability on the Contractor, in the event of his failing to report a fault, is in establishing that the Contractor knew of the 'error' and when he became aware of that 'error'. Assuming that you can establish this, it is possible to argue that the Contractor delayed the project; subject to establishing that the failure was the cause of the delay(or the likely delay) and that the Contractor's failure was the dominant cause.

(Unlike the FIDIC 1999 form the criteria under the FIDIC 1987 form is the Contractor discovering the error. In the later form the criteria is the time at which the Contractor became aware or should have become aware of the error.)

The Contractor cannot be responsible for the further time required to remedy the 'error', except to the extent that it can be shown that had the Contractor advised when he first knew of the 'error' this element of delay could have been avoided or mitigated.

It is likely that under the FIDIC 1987 form there is provision for Liquidated Damages to be applied in the event that the Contractor is, without reasonable excuse, late in completing the Works. This would then be the measure of the damages for which the Contractor is liable. If LD's were not specified, then the damages would have to be ascertained and proven.

I hope that this assists you.

Kind regards,

John Dowse

John Dowse can be contacted by e-mail to [email protected]  
Timeus
 
Posts: 37
Joined: Mon Jan 20, 2014 3:57 pm

Contractor's Liability

Postby Randel » Sat May 21, 2016 11:33 am

Dear John,

Under Fidic 1987 4th edition, clause 8.1(Contractor's General Responsibilities)the Contractor should notify the Engineer of any error, fault or other defect in the design or the specification for the works                                                    The question is;                                                                To what extent would the Contractor be liable in the event of failing to report faulty design? and in such case would he, contractually,be responsible of consequent delays and additional costs?

Regards
Randel
 
Posts: 44
Joined: Wed Feb 26, 2014 7:48 am


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