Construction Law: Analysis of Employer and Contractor Responsibilities

This assignment analyzes a construction law scenario involving a road works project governed by the FIDIC Red Book. The student, working under a contractor, examines the employer's failure to grant site possession, leading to delays and potential claims. The report discusses the employer's obligation to cooperate by providing site access, as per the FIDIC and JCT suites. It highlights the contractor's rights to claim extensions and compensation for delays caused by the employer's breach. The assignment references relevant clauses from FIDIC 1999 and JCT 2016, and discusses the importance of demonstrating diligence to avoid penalties. The analysis covers the Contract Administrator's opinion, emphasizing the contractor's entitlement to claims under clauses 8.4 and 20.1. It also includes a review of a classmate's work and a comprehensive reference list of legal and construction management resources.

Running head: CONSTRUCTION LAW
Construction Law
Name of the Student
Name of the University
Author Note

1CONSTRUCTION LAW
The FIDIC red book contract governs the construction project for road works. I was
employed under a contractor to work in the construction of the roads project. Despite the fact
that the contractor had assembled resources, which includes men and equipments for the road
construction work, the employer, did not grant possession of the site to the contractor. The Red
Book entails contract that deals with civil engineering sector, which is distinct from the
electrical/mechanical engineering sector1.
The building contracts stipulate the obligations either of the employer that he owes to the
contractor expressly or in an implied manner. The two most essential obligation of the employer
with respect to any building contract entered into with the contractor are as follows:
 The employer is obligated to co-operate with the contractor that is, the employer must
provide the contractor with a suitable position, which enables the employer to fulfill
his/her obligations stipulated under the contract.
 The employer is obligated to make payments to the contractor for the works that have
been carried out by the contractor with respect to the construction work.
Even if the employer delegates his obligations to some other persons but she shall be held
responsible for the performance of his stipulated obligations. In London Borough of Merton v
Stanley Hugh Leach Ltd [1985]2, it was held that the employer must not engage in any conduct
that would hinder the obligations of the employer under the contract.
There are certain building contracts that expressly stipulates the obligation of the employer to
give the contractor an access to the construction site with a view to carry out the construction
work. According to clause 2.4 of the JCT SBC/Q 2016 on the date of possession of the site or
1 Wilkens, V., & Viljoen, P. (2014, April). Fidic red book 1999 equally responsive to all parties to the contract with
regard to the claims and dispute resolution procedure. In proceedings in gv-global virtual conference(no. 1).
2 [1985] 32 B.L.R. 51.

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possession of the relevant section of the site shall be given to the contractor who shall commence
the construction of the work or the section of the site. The contractor thereafter shall proceed
with the construction work diligently and regularly and is entitled to complete the construction
work on or before the date of completion stipulated in the contract.
According to clause 2.1 of the FIDIC suite 1999, the employer shall be entitled to provide
the contractor with the right to possession of and access to all the parts of the site within the
stipulated time3. The employer is entitled to give the contractor with the right to access and the
possession of the site within such period that would enable the contractor to proceed with the
construction work. As per sub-clause 20.1, in the event of any delay or if the contractor had to
incur expenses owing to the failure of the employer to provide the contractor with the right to
access or possession of the construction site, the contractor shall be entitled to serve notice to the
Engineer and make claims in respect to the following grounds:
 an extension of time for causing such delay, in case the delay occurs in completing the
construction under sub-clause 8.4; and
 payment for any such expenses incurred and any reasonable profit that shall be included
within the Contract price
However, the contractor shall not be liable to make any claims if the delay results from any
conduct or omission on part of the contractor4.
In our scenario, the employer caused delay in granting the possession of the construction
site, which amounts to the breach of the primary obligation of the employer to cooperate with the
3 Powell, G. (2016). Construction Contract Preparation and Management: From Concept to Completion. Palgrave
Macmillan.
4 Brook, M. (2016). Estimating and tendering for construction work. Taylor & Francis.

3CONSTRUCTION LAW
contractor by giving the possession of the site5. Under such circumstances, the contractor was
entitled to serve notice upon the employer for extension of time and for making payments made
with respect to the contract under clause 2.1 of the FIDIC suite 1999. The reason for delaying
the grant of possession of the site was on part of the employer and the contractor was not
responsible for the same.
Since the employer failed to grant us the possession of the construction site within the
stipulated time, it would entitle us to claim for an additional time than the original time stipulated
in the contract. The delay also resulted in the delay in the completion of construction of the
sectional areas6. As per the JCT suite 2016, the employer is prohibited from re-entering into the
construction site after granting the possession to the contractor. The employer may enter upon
the construction site and take possession of the site as per clause 8.7 of JCT suite 2016 or when
the contract is terminated owing to the fault on part of the contractor as per clause 8.4 of the JCT
suite 2016.
On the facts here, we were supposed to finish the construction of some of the sectional
areas but due to some reasons that were beyond the control of the contractor. However, since we
could not complete the construction of the sectional areas, the engineers imposed penalty in the
subsequent interim payment, which was, nevertheless, reversed when we succeeded in claiming
additional time. Nevertheless, in order to establish that the delay was not intentional, we had to
prove that the contractor had acted diligently and have carried out the construction work based
on good trade practices. Furthermore, we succeeded in establishing the fact that the delay caused
5 Sinclair, S. T. A. C. Y. (2016). designing+(dis) assembling disputes: an ethnography of disputes & lawyers in the
construction industry (Doctoral dissertation, University of Westminster).
6 Wang, J. D. (2015, September). The Duality of the Engineer as Contractor Administrator under FIDIC Contract
Conditions. In Advanced Material Engineering: Proceedings of the 2015 International Conference on Advanced
Material Engineering (p. 379). World Scientific.

4CONSTRUCTION LAW
was not deliberate as it was beyond the control of the contractor and he had taken reasonable
measures to avoid any such delay7. In addition, the delay did not cause the employer to suffer
any financial loss of any manner, which further signifies that the contractor had carried out the
construction work applying good trade practices.
To sum up the entire experience, the Contract Administrator opined that the employer
had failed to perform his obligations by causing delay in granting the possession of the
construction site, which has further cause delay in commencing the construction of the sectional
areas of the construction site. Hence, under clause 8.4 and 20.1, the contractor was entitled to
claim for extended time or money to complete the project and to the extent that completion for
the purposes stipulated in sub-clause 10.1 of the FIDIC suite of 19998. The contractor should
serve such notice of claim within 28 days from the date he became aware of the circumstances
that entitled to make such claim.
As per the answer provided by my classmate, it is well structured and the provisions
included in the assignment are relevant. My fellow classmate has successfully discussed the
provisions relating to the rights, obligations of employer and contractor with respect to
construction work. In the event of delay in granting the possession of the site, it may entitle the
contractor to claim extension of time and monetary compensation for any expenses incurred by
the contractor due to the delay of the employer in granting the site possession as per JCT suite
2016 and FIDIC 1999.
7 Baker, E., Mellors, B., Chalmers, S., & Lavers, A. (2013). FIDIC contracts: Law and practice. CRC Press.
8 Wilkens, V., & Viljoen, P. (2014, April). Fidic red book 1999 equally responsive to all parties to the contract with
regard to the claims and dispute resolution procedure. In Proceedings in GV-Global Virtual Conference(No. 1).

5CONSTRUCTION LAW
Reference List
Baker, E., Mellors, B., Chalmers, S., & Lavers, A. (2013). FIDIC contracts: Law and practice.
CRC Press.
Brook, M. (2016). Estimating and tendering for construction work. Taylor & Francis.
Chappell, D. (2017). The JCT Minor Works Building Contracts 2016. John Wiley & Sons.
London Borough of Merton v Stanley Hugh Leach Ltd [1985] 32 B.L.R. 51
Powell, G. (2016). Construction Contract Preparation and Management: From Concept to
Completion. Palgrave Macmillan.
Sinclair, S. T. A. C. Y. (2016). designing+(dis) assembling disputes: an ethnography of disputes
& lawyers in the construction industry (Doctoral dissertation, University of Westminster).
Wang, J. D. (2015, September). The Duality of the Engineer as Contractor Administrator under
FIDIC Contract Conditions. In Advanced Material Engineering: Proceedings of the 2015
International Conference on Advanced Material Engineering (p. 379). World Scientific.
Wilkens, V., & Viljoen, P. (2014, April). Fidic red book 1999 equally responsive to all parties to
the contract with regard to the claims and dispute resolution procedure. In Proceedings in GV-
Global Virtual Conference(No. 1).