By Philip Adams
Philip Adams explains how the word ‘coordinate’ does not include managing and how the main contractor does not have any power over other contractors.
In a previous article I referred to the term ‘coordination’ and given recent experiences, I thought it would be useful to expand on the subject a bit more. I have come to the conclusion that this word is considered by some to be an ancient mystical symbol infused with magical qualities. When faced with problems on site one only has to utter this word and ‘poof’ they miraculously disappear!
The problem seems to stem from a basic misunderstanding of what the term means compared to an obligation to ‘manage’ and more importantly how this relates to the contractors obligations with respect to ‘other contractors’ and third parties. As previously recommended it is a good tip to begin with the basic dictionary definition of the terms namely, ‘coordinate’ = to place or arrange in proper order, and ‘manage’ = to exert control over.
Clause 4.6 of the Fidic Plant and Design Build Contract (Yellow Book) states that the Contractor ‘shall allow appropriate opportunities’ for carrying out work to the employers’ personnel, employers’ contractors and public authorities. The contractor shall be responsible for his construction activities on the site, and shall ‘coordinate his own activities with those of other contractors’ to the extent (if any) specified in the employers’ requirements.
It is important to note that clause 4.6 obliges the contractor to ‘allow opportunities’ and to ‘coordinate’; it does not oblige the contractor to ‘manage’ these other contractors and public authorities. Therefore, if the other contractors or public authorities are late in carrying out their works then in the absence of an express obligation ‘to manage’, the contractor has no responsibility to ‘exert control’ over them to ensure they carry out their obligations.
Furthermore, the contract is binding between only two parties, namely the employer and contractor. It cannot be enforceable against ‘other contractors’ and therefore, the contractor has no recourse against them or power or authority over them. Consequently, the contractor has no control over any of their acts or omissions and any attempt to make the contractor liable for such acts or omissions would be beyond the scope of the powers granted by the contract.
Hence why under Fidic a contractor is entitled to a time extension for completion, due to any delay caused by the employers personnel or the employers other contractors (clause 8.4(e)), and public authorities (clause 8.5); provided he has diligently followed the authorities procedures.
Finally, the above can cause considerable problems when a contractor is attempting to gain approval or consent to his programme (eg. Fidic clause 8.3).Where works by ‘other contractors’ are delayed and no extension of time has been granted, it is virtually impossible to gain approval of the contractors programme especially if the engineer blames the contractor due to his alleged ‘failure to coordinate’ his works with those of ‘other contractors’.
In such circumstances the only solution is to revise the time for completion, but this rarely happens and consequently the programme remains unapproved and confusion reigns supreme when the parties attempt to administer the extension of time provisions.
In conclusion, coordinate does not mean manage and the contractor has no power or authority over ‘other contractors’. The employer retains the risk of acts and omissions by ‘other contractors’ and no amount of waving of the coordination wand will change that!
Philip Adams is an associate director at Systech in Dubai. He has provided commercial, contractual and dispute resolution advice on projects ranging from high specification offices, data centres and long distance fibre optic networks to major civil engineering projects, multi-storey offices and hotels. He is a member of the Royal Institution of Chartered Surveyors and a fellow at the Chartered Institute of Arbitrators.
The opinions expressed in this column are of the author and not of the publisher.