Expert advice in minutes not days. Register it's free and ask your first question now.
ReachBack is a free community help desk for construction professionals run by Built Intelligence. A library of high-quality questions from real users with answers delivered and curated by industry experts.

Do you want to update your skills in NEC3, NEC4, JCT, Procurement, CDM or Project management?

Sign up for one of our free online courses.

4,486 questions

4,728 answers

729 comments

Register its Free

Download here

Specific Clause omission by the Client Representative from the contract

0 votes
76 views
I work for a construction company in the Caribbean. We are currently in the middle of negotiating a contract for resurfacing works, valued at approximately 12 mil USD.
The client has brought a consultant engineer on board to represent their interest. We are both in agreement to use FIDIC Construction Contract 1st Ed 1999, For Building and Engineering Works Designed by the Employer with several amendments.
However, in the Contract Particulars, they have inserted the following;
•    Delete Sub-Clause 14.5 Plant and Materials:
•    Delete Sub-Clause 14.8 Delayed Payment
•    Delete Sub-Clause 16.1 Contractor’s Entitlement to suspend Work.
•    Delete Sub-Clause 16.2 Termination by Contractor.
•    Delete Sub-Clause 16.3 Cessation of works and removal of Contractor’s Equipment.
•    Delete Sub-Clause 16.2 Payment on Termination
We do not believe that this is fair and amounts to unfair terms. If these clauses are removed, we will have no real recourse to take action under the contract for example, if the client breaches clause 14.7 Payment.
Please note that there is also no replacement text for those omitted clauses.
asked Feb 5 in Construction Contract Red Book by mikemorris (150 points)  

1 Answer

+1 vote
 
Best answer
My simple message here would be "then don't sign up to this contract". I think with any form of contract it is a bit of a risk to signing up to a contract and taking the lottery of claiming unfair clause in a court of law. Clients are allowed to change contracts - you just have to judge as to whether you are prepared to price the risk of those changes.

Tell them at tender stage that you are not prepared to sign up to those clauses - explaining why, and if they insist on keeping them in then I don't think that is a client I would want to work for and I would rather put efforts into tendering a job with a different client.
answered Feb 6 by Glenn Hide (58,560 points)  
I agree with Glenn in that you would not be able to rely on claiming an unfair term once you have signed the contract.

There are several alarm bells that ring here, not least that they are using an outdated FIDIC form and making some wholesale deletions to the contract clauses with the sole intent to place greater risk on the Contractor.  This leads me to believe that the person making the changes doesn't really know much about contracts and is making a bit of a hash of it.  This also suggests that their post-contract administration abilities would leave a lot to be desired too, if they need to rely on deleting clauses relating to their own breach of contract (delayed payment).

Not sure why they don't just use the FIDIC Silver Book instead to be honest if they are looking to transfer risk.