The definition of force majeure provided in the FIDIC Red Book 1999 Edition form in Clause 19 is widely drawn. Sub-Clause 19.1 defines a force majeure event as one:
A) which is beyond a Party’s control,
B) which such Party could not reasonably have provided against before entering into the Contract,
C) which, having arisen, such Party could not reasonably have avoided or overcome, and
D) which is not substantially attributable to the other Party…….. (more)
The Green Book continues to reflect the principles and allocation of risk between the parties as the FIDIC Red and Yellow Books. It allows for either lump sum or other pricing and allows for design by either the Employer or the Contractor. There is no Engineer as with the Red and Yellow Books, but the Employer may nominate his Representative which may or may not be a professional engaged to manage the Contract Works. As the name suggests the Short Form is much briefer than the more detailed Red and Yellow Books with only fifteen clauses and four thousand five hundred words compared to the thirty thousand plus, word count for the Red Book. (more)
Clause 53 of the Conditions of Contract specifies the procedure which the Contractor must follow in the event that he intends to make a claim under the Contract. A variant of this clause is also included within the current editions of the FIDIC forms of contract and may also to be found in many other standard forms.
In the event that the Contractor intends to claim any additional payment under the Contract Clause 53 makes it a mandatory (more)
Where the Employer fails to give possession of the site to the Contractor on or before the date stated within the Contract, it is a breach of contract and, if the failure to give possession continues for any significant time, it will be a material of the contract. This is because without possession of the site the contractor cannot execute the Works under the contract. All standard forms of contract used in Malaysia including PAM 2006, provide for a specific date for possession of the site. Failure to give possession of the site is a breach not only of the express terms of a contract but also a breach of a term that would be implied at common law in the absence of such an express term.
As a result of the Employers default in giving possession of site being a material breach of the contract, a protracted failure by the Employer to give possession of site, and any subsequent acceptance by the Contractor of the Employer’s breach, may entitle the Contractor to accept the repudiation and to commence an action for damages, which could include the loss of the profit that it would otherwise have earned. (See Wraight Ltd v PH&T Holdings Ltd ). In Malaysia most Contractors would balk at taking such drastic action, but they may claim damages at common law for any loss actually incurred. (more)
It has been reported that the joint-venture of MMC Corp Bhd and Gamuda Bhd has won the tunnelling and underground stations package for the Projek Mass Rapid Transit Lembah Kelang – Jajaran Sungai Buloh-Kajang with a bid in the region of RM 8.2 Billion. The Package comprises of 9.5km of tunnels and seven stations running from Semantan Portal to Maluri Portal.
It is understood that a procurement committee chaired by the Malaysian Prime Minister decided on award of the package to MMC-Gamuda JV based on its strengths in design, construction plant and tunnelling equipment, construction methodology and price.
It is reported that MMC – Gamuda JV price was 3.4 percent lower than the next lowest bid.