ÍNDICE DE CONTENIDOS GRI

The Contractor shall bring to site for the project skilled and experienced

technicalassistants, competent foremen and leading hands to supervise the works and allnecessary labour for the proper execution of the project.The Engineer shall be entitled to object to anybody he considers has misbehavedor is incompetent or negligent or otherwise undesirable. The Contractor shallremove any such person permanently and shall replace him as soon as possible.T h i s c l a u s e i s e s s e n t i a l l y s i m i l a r t o t h e 3 r d E d i t i o n s u b j e c t t o a n u m b e r o f changes in the vocabulary.T h i s c l a u s e i m p o s e s u p o n t h e C o n t r a c t o r o b l i g a t i o n s a n d g i v e s t h e E n g i n e e r powers with a view to ensuring the quality of the works. The general obligation isset out at clause 8.1 (Contractor's general responsibilities) where "the Contractor shall provide all

superintendence, labour...". The Engineer's power must be e x e r c i s e d i m p a r t i a l l y a s t h e r e m o v a l o f a s s i s t a n t s a n d l a b o u r i s a c t i o n w h i c h " m a y a f f e c t t h e r i g h t s a n d o b l i g a t i o n s " o f t h e C o n t r a c t o r u n d e r c l a u s e 2 . 6 (Engineer to act impartially).

The Engineer's entitlement to object is not necessarily limited to the categories of person set out at 16.1 (a) and (b) as he can require the removal of "any personprovided by the Contractor". Thus, management, consultants and subcontractorsc o u l d f a l l w i t h i n t h i s c l a u s e . C l a u s e 1 . 3

( I n t e r p r e t a t i o n ) s t a t e s t h a t t h e t e r m 'person' includes firms, corporations and other organisations."...otherwise considered by the En gineer to be undesirable...". The duty to actimpartially is an important qualification of an otherwise extremely broad

term.F r o m t h e E m p l o y e r ' s p o i n t o f v i e w , t h e C o n t r a c t o r ' s c l a i m s t e a m c o u l d b e c o n s i d e r e d u n d e s i r a b l e a s c o u l d e x p e r t s b r o u g h t o n t o s i t e t o l o o k i n t o , f o r example, deficiencies in the Engineer's design. As "undesirable" does not cover misbehaviour, incompetence or negligence, which are specifically referred to, theterm is presumably aimed at trouble-makers or people who disregard site safety.As with clause 15.1 (Contractor's

superintendence), Part II provides an optionalclause whereby the Contractor's superintending staff should have a

reasonablep r o p o r t i o n o f p e o p l e w i t h a w o r k i n g k n o w l e d g e o f a g i v e n l a n g u a g e . Alternatively, competent

interpreters are to be provided.Part II also provides a clause encouraging the Contractor to employ local staff and labour. FIDIC, in their Guide, seek to discourage delegation of the Engineer'spower under this clause and clause 15.1. CLAUSE 17 : Setting out

Once the Engineer has stated in writing the original points, lines and levels of reference, the Contractor is responsible for the accurate setting-out of all parts of t h e w o r k a n d p r o v i d i n g l a b o u r a n d e q u i p m e n t f o r t h e

p u r p o s e s o f s e t t i n g o u t . The Contractor shall rectify any setting-out error that appears, if required to do soby the Engineer, at his own cost unless the error is based on incorrect writtendata supplied by the Engineer, in which case the Contractor will be reimbursed.The Contractor will not be relieved of his responsibility if the Engineer checks anysetting-out. The Contractor must protect all bench-marks, site-rails, pegs etc.This clause uses the vocabulary of the 4th Edition but the principles of the 3rd Edition are retained.This clause, like clause 39.1 (Removal of improper work, materials or

plant),g i v e s t h e E n g i n e e r w i d e p o w e r t o c a u s e t h e C o n t r a c t o r t o r e c t i f y e r r o r s regardless of their significance. In practice, parties would normally agree to

ar e d u c t i o n i n t h e v a l u a t i o n o f t h e w o r k i f a m i n o r d e f e c t w o u l d b e disproportionately expensive to remedy. At common law, the Employer would beunder an obligation to mitigate his loss, but the terms of this clause and clause 3 9 s e e m t o n e g a t e a n y s u c h d u t y . F o r d i s c u s s i o n o f t h e E n g i n e e r ' s p o w e r t o waive strict compliance with the specification, see the commentary under clause2.1 (Engineer's duties and authority) and clause 13 (W ork to be in accordancewith contract).

This clause envisages the Engineer giving reference points and data in writingwhich is obviously sensible for the avoidance of disputes. However, it is easy toimagine site conditions in which writing would not assist and the Engineer wouldb e o b l i g e d t o p r o v i d e a p h y s i c a l d a t u m p o i n t . I n

t h e s e c i r c u m s t a n c e s ,

t h e C o n t r a c t o r w o u l d b e w e l l a d v i s e d t o r e q u e s t t h e E n g i n e e r t o c o n f i r m w i t h whatever description was appropriate the nature and location of the marker. Inany situation where there is a physical datum point, there is risk that it would

bem o v e d o r d a m a g e d b y h e a v y m a c h i n e r y h e n c e t h e o b l i g a t i o n u p o n t h e Contractor to protect and preserve it. As the physical datum point would be the best evidence of the setting out error upon which the Contractor may be seekingto rely, it is plainly in his interests to do so.I f t h e E n g i n e e r s u p p l i e s i n c o r r e c t d a t a , a n d a d m i t s t h e e r r o r , h e i s g i v e n t h e choice of requiring the Contractor to rectify the error, whereupon the Contractor isentitled to be paid in accordance with clause 52 (Valuation of variations); or of disregarding the error. However as clause 2.1(c) (Engineer's duties and authority)makes it clear that the Engineer has "no authority to relieve the Contractor of anyof his obligations", the Contractor must obtain evidence that the Employer hasapproved the Engineer's decision. As commented under clause 2.1, it is unlikelythat a written instruction is sufficient

evidence.The use by the draftsman of the expression "subject as above mentioned" hereand in clause 11.1 (Inspection of site) is an unhelpful practice as in both cases itf a r f r o m o b v i o u s w h a t i s b e i n g r e f e r r e d t o . H e r e i t p r e s u m a b l y r e f e r s t o " i n relation to original points, lines ... given by

the Engineer..."." T h e c h e c k i n g o f a n y s e t t i n g - o u t . . . s h a l l n o t . . . r e l i e v e t h e C o n t r a c t o r o f h i s r e s p o n s i b i l i t y . . . " . W h i l s t t h e C o n t r a c t o r s h o u l d n o t b e e n t i t l e d t o e s c a p e h i s liability for

inaccurate setting out due to the fact that one of the Engineer's teamwas on hand when the setting out was done, it would be equally wrong if somecrucial element of setting out, which the Contractor specifically arranged for theEngineer to check and verify, could then be held to be inaccurate with the resultthat the Contractor is obliged to rectify all work carried out at his own cost. TheContractor could endeavour to protect himself by

requesting that the Engineer confirm in writing that the setting out is

accurate and correct or alternatively he c o u l d t r e a t t h e a p p r o v a l o f t h e s e t t i n g o u t a s a n o r a l i n s t r u c t i o n a n d

w r i t e p u r s u a n t t o c l a u s e 2 . 5 ( I n s t r u c t i o n s i n w r i t i n g ) c o n f i r m i n g t h e i n s t r u c t i o n . However, neither of these steps overcome the express words of the clause, it

iss u b m i t t e d . A s a l a s t r e s o r t , t h e C o n t r a c t o r c o u l d c h a l l e n g e t h e E n g i n e e r ' s decision to require rectification as being unreasonable and contrary to clause 2.6(Engineer to act impartially). This clause con tinues a theme in the contract

of m a i n t a i n i n g t h e C o n t r a c t o r ' s r e s p o n s i b i l i t y , r e g a r d l e s s o f t h e a c t i o n s o f t h e Engineer. See also clause 7.3 (Responsibility unaffected by

approval), clause 14.4 (Contractor not relieved of duties or responsibilities), clause 37.2 (Inspectiona n d t e s t i n g ) , a n d c l a u s e 5 4 . 8 ( A p p r o v a l o f m a t e r i a l s n o t i m p l i e d ) f o r o t h e r examples. See also clause 61.1 (Approval only by Defects Liability Certificate).

Although this clause provides for additional money, extension of time is not dealtwith. Delay caused by an error by the Engineer must be capable of an

extensiono f t i m e o r e l s e t i m e w o u l d b e s e t a t l a r g e . C l a u s e 4 4 . 1 i t e m ( d ) , " a n y d e l a y , impediment or prevention by the Employer" could apply, failing which the error could amount to "special circumstances"

under item (e).Clause 53.1 (Notice of claims) applies to claims under this sub-clause so that theC o n t r a c t o r h a s 2 8 d a y s o f t h e e v e n t t o n o t i f y t h e

E n g i n e e r o f a n i n t e n t i o n t o 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.