Le­gal

Enterprise - - Contents - By Engr. Per­vaiz Gani

Are we im­ple­ment­ing con­struc­tion laws in Pak­istan?

With more than 40 years of ex­pe­ri­ence in the Civil En­gi­neer­ing pro­fes­sion in Se­nior Ex­ec­u­tive po­si­tions with In­ter­na­tional and lead­ing na­tional Con­struc­tion firms, Con­sult­ing firms, the Donor agen­cies (The United States Agency for In­ter­na­tional De­vel­op­ment and the World Bank) in 5 de­vel­op­ing coun­tries : (Pak­istan, UAE, Su­dan, South Africa and Nige­ria), I have come to a sad and painful con­clu­sion that we are not im­ple­ment­ing the con­struc­tion law in Pak­istan in let­ter and spirit. We all are now ex­pe­ri­enc­ing its de­struc­tive ef­fects on our econ­omy.

The in­spi­ra­tion for writ­ing this pa­per, de­spite my hec­tic sched­ule work­ing in Is­lam­abad as an In­di­vid­ual Con­sul­tant, is a hope to wake up our con­struc­tion con­trac­tors from a deep slum­ber to know their con­trac­tual rights pro­vided by FIDIC ; and also a wake-up call to Pro­fes­sional En­gi­neers act­ing as “En­gi­neer” with Clients/Em­ployer to work con­sci­en­tiously to ful­fill their roles as “En­gi­neer” as re­quired by FIDIC Gen­eral Con­di­tions of Con­tract clause 2.4 : “En­gi­neer to act im­par­tially” as quoted be­low:

“When­ever un­der the con­tract the En­gi­neer is re­quired to ex­er­cise his dis­cre­tion by : a. Giv­ing his decision, opin­ion or

con­sent, b. Ex­press­ing his sat­is­fac­tion or

ap­proval, c. De­ter­min­ing value, d. Oth­er­wise tak­ing ac­tion which may af­fect the rights and obli­ga­tions of Em­ployer or Con­trac­tor. He shall ex­er­cise such dis­cre­tion im­par­tially within the terms of the con­tract and hav­ing the re­gard to all the cir­cum­stances.”

My per­cep­tion of the above quoted clause is that FIDIC be­stows a po­si­tion of judge to the En­gi­neer be­tween the Em­ployer and the con­trac­tor for the ju­di­cious ex­e­cu­tion of the con­tract through­out the con­tract du­ra­tion. The En­gi­neer has to act ju­di­ciously ex­e­cut­ing the con­tract in ac­cor­dance with the FIDIC rules and reg­u­la­tions as spelled out by FIDIC and made part of the bid­ding doc­u­ments is­sued to the bid­der dur­ing the bid­ding stage.

I would like to ques­tion all En­gi­neers as­signed the role of “En­gi­neer” of the con­tract whether they are ful­fill­ing this vi­tal Pro­fes­sional and Con­trac­tual obli­ga­tion ; and are they aware what are the na­tional detri­men­tal con­se­quences of its non-com­pli­ance .The au­thor also dares to en­quire from the con­struc­tion con­trac­tors why they feel timid in as­sert­ing their con­trac­tual rights as be­stowed by FIDIC. Per­haps our con­trac­tors have for­got­ten the sev­eral years strug­gle of the in­ter­na­tional com­mu­nity of their pre­de­ces­sor con­trac­tors against the tyranny of their Em­ploy­ers which re­sulted in the birth of FIDIC. I would like to see that con­trac­tors should not com­pro­mise with their rights at any cost. In my opin­ion the “cost” which they are pay­ing for mak­ing prof­its in an un­eth­i­cal way are far less than the profit they can earn by as­sert­ing their rights as per FIDIC rules. Yes I as­sure you. The taste of the pud­ding is in the eat­ing! Or is it the bid of the En­gi­neer and the con­trac­tor to make their Em­ploy­ers happy for their fu­ture business pro­mo­tion? But they should ask them­selves at what cost is this at­ti­tude to their business and the com­mu­nity they are sup­posed to serve.

2. Is the “En­gi­neer” ex­cer­cis­ing his dis­cre­tion im­par­tially within Terms of the con­tract and hav­ing re­gard to all cir­cum­stances?

In, most of the coun­tries where I have worked (Pak­istan, UAE, Su­dan, Nige­ria and South Africa) my ex­pe­ri­ence is that most of the time, the En­gi­neer is not ex­er­cis­ing his dis­cre­tion im­par­tially gen­er­ally in most of the cir­cum­stances, and par­tic­u­larly while giv­ing his de­ci­sions re­gard­ing time ex­ten­sion in ac­cor­dance with the Gen­eral con­di­tions of con­tract (GCC) 26.1 and other de­ci­sions re­lated to his du­ties un­der GCC clause 2.

In ad­di­tion, most of the time the En­gi­neer be­comes a party to his em­ployer for all as­pects of con­tracts ad­min­is­tra­tion through­out the con­tract pe­riod. For ex­am­ple, in jus­ti­fy­ing de­lays in site pos­ses­sion, de­lay in ap­proval of ma­te­ri­als and shop draw­ings, de­lay in progress pay­ments and all other daily con­trac­tual as­pects. Most of the con­trac­tors re­main silent spec­ta­tors most of the time gen­er­ally in the coun­tries I have worked and in par­tic­u­lar Pak­istan, even the lead­ing con­sult­ing com­pa­nies at times in­dulge in this un­eth­i­cal and un­pro­fes­sional col­lu­sion and un­holy al­liance with the Client / Em­ployer.

One may ask why the En­gi­neer acts in this un­pro­fes­sional be­hav­ior.

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