FIDIC COMPARED WITH CPWD CONTRACT CONDITIONS
Prepared By – Tarandeep Singh NICMAR
1. ENGINEER: FIDIC: Independent of Employer and Contractor Employer selects him with regard to his ability Not a party to the contract therefore no administrative pressures In case Engineers decision not acceptable - DAB by either party. CPWD: Normally an officer of the relevant department – namely an employee Subjected to administrative pressures leading to delicate situations resulting from indecision. Authorized to sign the contract – therefore becomes part of the contract Thus cannot remain impartial to the contractor and becomes partial to the employer and in his personal interest 2. COMPOSITION OF CONTRACTS FIDIC: Contract Agreement, the Letter of Acceptance, the Letter of Tender, these Conditions, the Specification, the Drawings, the Schedules, further documents(if any) CPWD: The tender The acceptance the formal agreement The conditions of contract The specifications The drawings
The instructions issued from time to time by the engineer and all these documents shall be deemed to be one Contract and shall be complimentary to one another 3. PRIORITIES OF DOCUMENTS FIDIC: the Contract Agreement (if any), the Letter of Acceptance, the Letter of Tender, the Particular Conditions the General Conditions, the Specification, the Drawings, and the Schedules and any other documents forming part of the Contract CPWD: Description of Schedule of Quantity Particular specification Special condition, if any Drawings CPWD specification Indian Standard Specifications - BIS NOTE: In FIDIC the documents named in the priority list are essentially those mentioned as Contract Documents, however the priorities set by CPWD includes description of schedule and ISS-BIS both of which are not part of the contract documents. 4. AMBIGUTIES and/or DESCREPENCIES IN DOCUMENTS FIDIC: “In case of ambiguities the same shall be explained and adjusted by the Engineer, who shall then issue instructions to resolve the problem” – A friendly approach CPWD:
“the accepting authority shall be the deciding authority with regard to the intention of the document and his decision shall be final and binding on the contractor” – dictatorial overview of the situationEngineer is an Employer 5. DISRUPTION OF PROGRESS FIDIC: Disruption of progress – contractor gives notice of delay for late submission of drawings. Likely time of delay also to be mentioned. In case of delay on part of the Engineer and contractor suffers delay and costs Engineer shall determine – EOT and cost to be provided to the contractor Vice- versa – delays and disruption on part of contractor shall be considered by the Engineer CPWD: Disruption due to force majeure, bad weather, fire, commotion, contractor engaged by engineer for works not being part of the contract, non availability of stores being the responsibility of the government to supply, any other cause beyond the control of contractor: Request of extension of time can be made by the Contractor. Engineer-in-charge to give fair consideration for completion of work and provide for extension. Decision within three months and this shall be final and binding NOTE: (a) In CPWD for reasons where the Engineer-in-charge is personally responsible for delay is not listed as qualifier for request for extension. (b) No mention of a monetary compensation against losses resulting form delays that are not attributable to the contractor. 6. IMPARTIALLITY OF THE ENGINEER FIDIC: Engineer shall consult with each party in an endeavor to reach agreement, if no agreement reached then engineer to make a fair determination in accordance with the contract.
CPWD: This impartiality is impossible as the Engineer and the Employer are one and the same. 7. PERFROMANCE SECURITY FIDIC: Employer shall not make a claim under performance security for reasons except those specified Employer to indemnify and hold contractor harmless against and from all damages resulting from a claim under performance security to the extent to which the Employer was not entitled to make a claim. CPWD: No such mention of reasons for claim under performance security Also, it is impossible to believe that the Employer shall give any indemnity. 8. RISKS FIDIC: Provisions for a fair share of risks have been made Unforeseen physical condition – Engineer to determine the entitlement of contractor for EOT and extra cost. Several categories of risks and situations provide for the Employer to indemnify the contractor from damage or loss form those situations CPWD: Do not provide for this and therefore all risks are transferred to the contractor, thereby raising the price structure 9. ENGINEER’S DECISION ‘FINAL AND BINDING’ FIDIC:
None of the decisions are final and binding on either party CPWD: Serial No.
Clause
Authority whose decision is said to be final
Topic
1.
Clause 2
Superintending Engineer
Decision on the compensation to be levied for failure to maintain the agreed rate of progress, or for delay in completion.
2.
Clause 3
Engineer-incharge
Opinion of the Engineer-in-charge, regarding whether the contractor shall not be able to complete the work by the specified date of completion, for the purposes of taking further action under clause 3 to determine the contract.
3.
Clause 3
Engineer-incharge
Notice to be issued for determining the contract.
4.
Clause 3
Engineer-incharge
The cost of the labour and materials input for carrying out the work which is to be debited to the contractor’s account under clause 3(b)
5.
Clause 3
6.
Clause 4
Engineer-incharge
Exercising the decision to take possession of, or to use on hire, the contractor’s materials and stores on determination of the contract under clause 3. Also, the hire charges to be paid to the contractor if the tools and plant are used as on hire.
7.
Clause 10
Engineer-incharge
Adoption of the mode of recovery prescribed in clause 42 at any stage of the work when the reconciliation between the quantity issued, quantity required as per theoretical requirement and the balance quantity available, is not satisfactory.
The value of the work to be credited to the contractor’s account when the work is carried out at the risk and cost of the contractor after determination of the contract.
Serial No.
Clause
Authority whose decision is said to be final
Topic
8.
Clause 10
Engineer-incharge
Price to be allowed for the materials returned by the contractor from the materials issued to him which are found to be surplus
9.
Clause 10
Engineer-incharge
Extension of time to be granted for delay in supply of stipulated materials.
10.
Clause 10 B
Engineer-incharge
Payment of secured advance on perishable materials provided insurance is made for full cost of those materials.
11.
Clause 15
Engineer-incharge
Decision to suspend work for reasons specified in clause 15(i), which include contractor’s defaults as well as other reasons such as safety of work etc.
12.
Clause 16
Engineer-incharge
Acceptance of sub-standard work at reduced rates or rejecting the substandard work and getting it rectified at the contractor’s risk and cost.
13.
Clause 19 D
Divisional Officer
Recovery to be made for non-submission or incorrect submission of the prescribed periodical labour returns.
14.
Clause 19 G
Divisional Officer
Recovery to be made for breach of labour regulations, or in furnishing the required statements/information, or for furnishing incorrect information.
15.
Clause 19 J
Superintending Engineer
Levy of compensation due to delay in acceptance of a completed building, such delay being attributed to unauthorised occupation of the building during construction
16.
Clause 25
Chief Engineer
Decision on the dispute referred to the Chief Engineer for adjudication within the terms of clause 25, if the contractor fails to give a notice, for appointment of an arbitrator, within 30 days of receipt of the decision from the Chief Engineer.
17.
Clause 27
Engineer-incharge
Amount payable to the contractor for work done against the lump sum provision made in the tender.
Serial No.
Clause
Authority whose decision is said to be final
Topic
18.
Clause 30
Engineer-incharge
Number of coal mining/controlled area labourers employed by the contractor, and the number of days for which they have been employed, in contravention of the provisions of clause 30.
19.
Clause 32
Engineer-incharge
Cost to be recovered from the contractor towards damage and abnormal repairs becoming necessary when contractor uses water from existing wells and hand pumps etc.
20.
Clause 33
Engineer-incharge
Price to be allowed for surplus materials taken over, when the materials were originally procured with government assistance.
21.
Clause 34
Divisional Officer
Liability on the contractor for damage to, or delay in returning of, the departmental plant and machinery issued to the contractor.
22.
Clause 34
Superintending Engineer
Decision on the dispute for extent of hire charges, and the number of days for which the hire charges are payable, by the contractor under clause 34 (iv) for the plant and machinery issued to him.
23.
Clause 34
Engineer-incharge
Decision on the dispute on correctness of the entries made in the logbook with regard to the departmental machinery issued to the contractor.
24.
Clause 34
Divisional Officer
Decision on the extent of the liability on the contractor for damage to or loss of parts in the departmental machinery issued to the contractor and for his failure to return the same in time.
25.
Clause 36
Engineer-incharge
Decision on the issue whether no technical representative is employed by the contractor in terms of clause 36.
26.
Clause 36
Engineer-incharge
Decision recorded in the site order book and the measurements recorded in the Measurement books, if it is already held that no technical representative is
Serial No.
Clause
Authority whose decision is said to be final
Topic
employed by the contractor, in terms of clause 36. 27.
Clause 38
Superintending Engineer
Decision on whether the delay in execution of work is due to reasons within the control of the contractor, in relation to the contractor’s entitlement for claims for reimbursement of taxes paid on account of introduction of new taxes under the Constitution (46th Amendment) Act, 1982.
28.
Clause 42
Engineer-incharge
Decision with regard to the theoretical quantities of materials issued by the department, that should have been used and the consequential recovery to be made in accordance with the procedure and rates as per clause 42.
29.
Clause 42
Superintending Engineer
Decision regarding the theoretical quantities of materials that should have been used in non-schedule items.
30.
Clause 43
Engineer-incharge
Decision regarding the quality and the quantity of materials collected by the contractor, and the purpose for which such materials were collected, for the purposes of evaluating the compensation to be paid to the contractor when damage occurs in war like situations.
31.
Safety Code Item 8(p)
Engineer-incharge
Decision on the extent to which the safety precautions are required to be taken.
32.
CPWD contract ors labour regulatio ns item 18
Superintending Engineer
Application and interpretation amendments made in the regulations.
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