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.